Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law (CERI Series in International Relations a)

Equality and Transparency

The CERI Series in International Relations and Political Economy Series Editor, Christophe Jaffrelot This series consists of works emanating from the foremost French research center in international studies, the Paris-based Centre d’Études et de Recherches Internationales (CERI), part of Sciences Po and associated with CNRS (Centre National de la Recherche Scientifique). Founded in 1952, CERI has about sixty fellows drawn from different disciplines who conduct research on comparative political analysis, international relations, regionalism, transnational flows, political sociology, political economy and on individual states. This series focuses on the transformations of the international arena, in a world where the state, though its sovereignty is questioned, reinvents itself. The series explores the effects on international relations and the world economy of regionalization, globalization (not only of trade and finance but also of culture), and transnational flows at large. This evolution in world affairs sustains a variety of networks from the ideological to the criminal or terrorist. Besides the geopolitical transformations of the globalized planet, the new political economy of the world has a decided impact on its destiny as well, and this series hopes to uncover what that is. Published by Palgrave Macmillan: Politics In China: Moving Frontiers edited by Françoise Mengin and Jean-Louis Rocca Tropical Forests, International Jungle: The Underside of Global Ecopolitics by Marie-Claude Smouts, translated by Cynthia Schoch The Political Economy of Emerging Markets: Actors, Institutions and Financial Crises in Latin America by Javier Santiso Cyber China: Reshaping National Identities in the Age of Information edited by Françoise Mengin With Us or Against Us: Studies in Global Anti-Americanism edited by Denis Lacorne and Tony Judt Vietnam’s New Order: International Perspectives on the State and Reform in Vietnam edited by Stéphanie Balme and Mark Sidel Equality and Transparency: A Strategic Perspective on Affirmative Action in American Law by Daniel Sabbagh, translated by Cynthia Schoch and John Atherton.

Equality and Transparency A Strategic Perspective on Affirmative Action in American Law Daniel Sabbagh

EQUALITY AND TRANSPARENCY

Copyright © Daniel Sabbagh, 2007. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2007 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978–1–4039–6382–6 ISBN-10: 1–4039–6382–7 Library of Congress Cataloging-in-Publication Data Sabbagh, Daniel. Equality and transparency : a strategic perspective on affirmative action in American law / Daniel Sabbagh. p. cm.—(CERI series in international relations and political economy) Includes bibliographical references and index. ISBN 1–4039–6382–7 (alk. paper) 1. Affirmative action programs—Law and legislation—United States. 2. Affirmative action programs—Social aspects—United States. I. Title. KF4755.5.S2233 2003 342.7308⬘7—dc22

2007002657

A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: September 2007 10

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Printed in the United States of America.

For Kahina

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CONTENTS

Acknowledgments

ix

Introduction

1

Part 1

Assessing Justifications for Affirmative Action

11

One

The Corrective Justice Paradigm

13

Two

The Diversity Paradigm

31

Three A Strategic and Consequentialist Perspective: Affirmative Action as an Instrument for Deracializing American Society

Part 2

Interpreting Legitimization Strategies for Affirmative Action

49

87

Four

The Problems with the Deracialization Argument

93

Five

The Negative Side Effects of Transparency

105

Six

Evidence of Dissimulation Strategies

116

General Conclusion

163

Notes

169

Bibliography

215

Index of Cases

239

General Index

243

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ACKNOWLEDGMENTS

This book is an updated and entirely revised translation of the second part of L’Égalité par le droit: les paradoxes de la discrimination positive aux ÉtatsUnis (Paris, Économica, series “Études politiques,” 2003; François Furet Book Award 2004). It draws on a doctoral dissertation on affirmative action in the United States that I completed at the Institut d’études politiques de Paris under the supervision of Denis Lacorne. I thank him and thank again all the persons already mentioned in the acknowledgments of L’Égalité par le droit (especially Christophe Jaffrelot for his continuing support). In addition, I would like to thank the editors of the Political Science Quarterly for allowing me to incorporate the bulk of my article, “Judicial Uses of Subterfuge: Affirmative Action Reconsidered” (PSQ, 18 (3), 2003, pp. 411–436) into this larger project. Portions of the book were also presented in various research seminars organized by Ian Carter and David Miller, Virginie Guiraudon, Christophe Jaffrelot, Michèle Lamont, Pap N’Diaye, Greg Robinson, Pierre Rosanvallon, Frédéric Sawicki, Rogers M. Smith, Sarah Song, and Laurent Thévenot. I am grateful to them and thank all the participants of these seminars for their comments. Since bits and pieces of this work have served as teaching material for courses that I taught at the Institut d’études politiques de Paris from 2000 to 2005 and at the School of International and Public Affairs of Columbia University in 2006, I am also grateful to some of my former students for probing me—directly or indirectly—to reconsider and sharpen some of my main arguments. They include Costanza Hermanin, Constance Lombard, Sarah Mazouz, Cynthia Mar, Jean-François Mignot, and Irene Xanthoudakis. When I started the research for Equality and Transparency, about ten years ago, I spent half a semester as a Visiting Fellow at the University of Chicago and one academic year as a Visiting Assistant in Research at Yale, where I drew some valuable advice and guidance from conversations with Michael Dawson, Richard Epstein, Bernard Manin, Lynn Sanders, Cass Sunstein,

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Acknowledgments

Bruce Ackerman, Ian Ayres, Stephen Carter, and Drew Days III. I am indebted to all of them. As I began figuring out what my argument would be and tried to develop it as well as I could, I got some particularly helpful—and often encouraging—responses from other scholars whose work was a source of inspiration for me, at a time when those encouragements were badly needed. In this respect, I am grateful to John Crowley, Owen Fiss, David Hollinger, Rogers M. Smith, Paul Sniderman, as well as George Fredrickson, Nathan Glazer, Glenn Loury, Anne Phillips, Jeffrey Rosen, and Martin Shapiro, who read or heard me present at least part of this book later on. I also thank the members of the award committee of the François Furet Book Award—Jean-Denis Bredin, Jean-Claude Casanova, Pierre Hassner, Françoise Mélonio, Mona Ozouf, Philippe Raynaud, and Pierre Rosanvallon—and Palgrave’s two anonymous reviewers. Obviously, none of the persons mentioned above bears any responsibility for the content of this book. All shortcomings are my own. Finally, I want to take this opportunity for extending my thanks to some friends and colleagues with whom I have had some particularly lively conversations in recent years on issues more or less directly related to the substance of this book. By their own example, they helped me retain the kind of intellectual enthusiasm necessary for any research worth its name: Myriam Aït-Aoudia, Stéphanie and Richard Balme, Laure Bereni, Olivier Bouquet, Anne Daguerre, Etienne De Durand, Élise Domenach, Philippe Estèbe, Camille Froidevaux-Metterie, Nicolas Guilhot, Thomas Kirszbaum, Éléonore Lépinard, Grégoire Mallard, Ann Morning, Paul Schor, Graziella Silva, Patrick Simon, Sarah Song, and Joan Stavo-Debauge. My special thanks to Valérie Amiraux, Gwénaële Calvès, Muriel Domenach, Agnès Konopka, Bertrand and Isabelle Ouillon, Michelle Pinto, Hayet Zeggar, Céline, Gabriel, Jérôme, and Pascale Sabbagh. Daniel Sabbagh Paris May 21, 2007.

Introduction

In order to get beyond racism, we must first take account of race. There is no other way. (Opinion of Justice Harry Blackmun, Regents of the University of California v. Bakke)1 Justice Blackmun’s admonition quoted above arguably encapsulates the crux of the political and legal controversy between supporters and critics of affirmative action in the United States. Must race be taken into account by public policies nonetheless designed to make American society more genuinely color-blind in the long run? Or should the state rather count on the performative power of the law and set for itself a rule of not taking race into account, conceiving of color blindness not only as a social goal to be promoted but also as an immediately enforceable prescription for public action? Contradictory arguments as to the effectiveness of affirmative action as an instrument for deracializing American society always revolve around this original dilemma. Beyond its racial dimension, however, affirmative action is also illustrative of the analytical distinction and structural tension between two “ideological categories of social policies”: the principle of equal treatment of citizens by state authorities, on the one hand, and the Aristotelian notion of fairness, on the other hand,2 a notion from which affirmative action programs partly derive. Generally speaking, fairness requires flexibility, that is, the adjustment of legal rules to the complexity of concrete predicaments. It points toward the need for a corrective adjudicatory process designed to remedy the local injustices necessarily arising from the very generality of legislation.3 While the typically universalistic dimension of legal discourse does provide individuals with some minimal protection from the arbitrary use of state power, it also prevents the law from fully grasping and dealing with

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the specificity of the conflicts that it is called upon to settle. Hence the need for some additional, external judgments beyond the statutory rule itself, judgments whose purpose is indeed to assess—and possibly to correct—the effects of applying that rule across the board. In the United States, it is arguably from this instrumentalist4 and pragmatist5 conception of the law that affirmative action policies derive, insofar as they are based on the recognition that members of groups defined on an ethnoracial6 or gender basis are still affected by some elusive disadvantages that the antidiscrimination principle alone is powerless to eradicate. Such policies thus provide an enlightening illustration of how three of the most distinctive features of American society––according to Tocqueville–– interact: the “passion for equality,”7 the strength of racial divisions, and the central role of the law in the settlement of political conflicts.8 Definitions Generally speaking, the expression “affirmative action” now refers to a wide array of measures set up at the end of the 1960s by executive agencies and the federal judiciary and which grant a more or less flexible kind of preferential treatment in the allocation of scarce resources—jobs, university admissions, and government contracts—to the members of underrepresented, ascriptive9 groups formerly targeted for legal discrimination. These groups are blacks, Hispanics, Native Americans,10 women, and sometimes Asians. The phrase “preferential treatment,” in my view, should not be understood as having any negative implication. It refers to a situation where, for example, a black applicant, B1, would be selected for a job (for which he or she is normally qualified in a minimal sense) in spite of there being at least one white applicant whose qualifications were deemed to be “higher.” “Higher” means that if another black applicant, B2, had come up with exactly the same qualifications as the white applicant, the employer would have hired him instead of B1.11 In other words, racial identification is the key factor here: B1 succeeds in obtaining the job he applied for and would have failed but for his being identified as black. Affirmative action thus can be criticized for being in conflict with two distinct principles frequently described as characteristic of the contemporary American legal and political order: the meritocratic principle and the principle of “color blindness,” both of which may seem to be endorsed by a substantial majority of the American public.12 While this definition of affirmative action captures the dominant meaning of the phrase as it is being used in current controversies, its

Introduction

3

original meaning was markedly different. In the employment field, for instance, up to the end of the 1960s, affirmative action policies were mainly concerned with increasing the number of black applicants, by running job advertisements in black newspapers or by setting up special training programs in areas where blacks were heavily concentrated.13 This type of affirmative action, also known as “outreach,” did take race into account, but in a rather limited way: race was allowed to enter the picture only within the preliminary process of enlarging the set from which individuals would be selected, not at the selection level itself. In current affirmative action policies, on the other hand, the recruitment process is entirely permeated by color consciousness, even during the final decision stage. Because, as a matter of fact, only this “second-generation affirmative action” is a subject of political and legal controversy, this study will focus on it exclusively.14 The Juridicialization of Politics and the Politicization of Law There is, of course, no shortage of scholarly studies of affirmative action. Such studies can roughly be divided as follows: ●

●

●

●

●

Sociological and historical studies of the political, administrative and legal origins, development and partial termination15 of affirmative action in its various fields of implementation;16 Quantitative studies done by economists to measure the impact of affirmative action in employment, university admissions, and government contracts;17 Surveys by political scientists and sociologists using interviews, questionnaires or opinion poll analyses to document the attitudes of the American public toward affirmative action in relation to considerations of distributive justice;18 Beginning as early as the first half of the 1970s, philosophical essays probing affirmative action from a speculative and normative angle and more often than not focusing on the legitimacy and appropriateness of that policy as an instrument of corrective justice;19 Explicitly comparative studies that draw parallels between the American experience and the direction taken by other countries that have implemented more or less similar affirmative action programs.20

While naturally taking into account the main findings of this body of research, my own approach is somewhat different. It is divided into two main components that are closely related yet analytically distinct and will

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be presented successively. In the first part of the book I attempt to assess the validity, that is, the degree of adequacy, of the two prevailing justifications for affirmative action, and I end up defending an alternative argument, the empirical assumptions of which I then try to identify precisely enough (I). In the second part, I offer an interpretation elaborated in light of some of the considerations discussed in the first part, which arguably deepens our understanding of the strategies used to legitimize affirmative action—judicial strategies in particular—and helps to account for some of their most noticeable by-products (II). Much of this study will focus on legal developments, with a special emphasis on the constraints and side effects induced by the juridicialization of moral and political conflicts. As Tocqueville famously argued, Scarcely any political question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language usual to judicial proceedings, in their daily controversies. As most public men are, or have been legal practitioners, they introduce the customs and technicalities of their profession into the affairs of the country. . . . the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, . . . so that the whole people contracts the habits and the tastes of the magistrate.21 Because contemporary American society is still permeated with this legal culture to a considerable extent,22 it makes sense to consider affirmative action through a “law and politics” perspective, so as to sort out the effects of such an ambivalent process of juridicialization of politics and politicization of law. The main goal of this study is thus not so much to describe the development of the Supreme Court’s case law and identify the legal principles from which it may or may not derive as to analyze the complex relationships between the legal and the extralegal spheres and refine our understanding of the legal construction of reality.23 Conflicting arguments about affirmative action will be considered in relation to “the degree of juridicialization of the political order and, conversely, the prevalence of political considerations in the operation of judicial mechanisms,” with a view to better “identify[ing] the connections between . . . legal rules and causal factors of an external kind.”24 To be sure, as a general matter, a “disjunction [between the judicial and the political realms] must obtain for the law to possess its full normative power”; it is only once “the remnants of its political origin have been erased that it acquires its presumably necessary and incontestable character.”25 Yet, American

5

Introduction 26

law is especially inclined to favor “practical reasoning” over the requirement of absolute consistency typical of the more purely deductive formalism prevalent elsewhere. I will thus consider affirmative action through a bidimensional analysis focusing both on how legal decisions incorporate political goals and strategic considerations implicitly geared toward transforming American society and, symmetrically, on the impact outside of the legal sphere of the constraints imposed by legal formalization, that is, on the social side effects of the juridicialization of politics in the United States. In chapters one and two, I will scrutinize the justifications for affirmative action. Such justifications must be provided, if only because of the apparent incompatibility between race-based decisions by state actors in the allocation of scarce resources and the individualistic and universalistic dimension of the founding principles of liberal democracy. Since the latter is closely related to a macrohistorical process of individual emancipation from the status previously assigned to everyone on the basis of group membership (whether that group be defined in terms of religion, occupation, or “race,”) affirmative action may appear as a regressive development detracting from a modern conception of citizenship supposedly characterized by the nonrecognition of subnational collective identities as a matter of law and the identification of the individual as the only legitimate unit of reference. Arguments supporting that policy must therefore reframe it so as to counter such an objection and prove compatible with a condemnation of the official discrimination which American blacks faced in the past. Unlike legal scholar Michel Rosenfeld,27 I will discuss the arguments most frequently put forward by the actual participants to the affirmative action debate, rather than try to figure out which immediately enforceable prescriptions might be drawn from the different theories of social justice elaborated by political philosophers. I will thus provide a critique of the two prevailing justifications for affirmative action: on the one hand, the initially dominant corrective justice paradigm, to be considered both in its original, individual-centered variety and in its problematic extension to relations between racial groups; on the other hand, from the late 1970s on, the defense of affirmative action as an instrument to promote “diversity” introduced in an ambiguous Supreme Court decision, Regents of the University of California v. Bakke, an argument increasingly popular even beyond the academic context in which it originally emerged. Why did such an argumentative shift take place? Moreover, if neither of these arguments prove convincing, might there be a third kind of justification available? In chapter three, I will try to provide such a justification, one that is both less vulnerable to the objections previously discussed and ultimately

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compatible with the individual-centered dimension of American liberalism.28 My starting point will be the following argument outlined by philosopher and legal scholar Ronald Dworkin: affirmative action ought to be viewed as an instrument aimed at reducing the correlation between race and class, since that correlation itself now works as a factor of disadvantage for all black individuals; and the policy ought to be assessed according to its effectiveness in relation to that goal. In drawing the implications of this argument, I will argue that it is based on an implicit, controversial, yet plausible historical and sociological judgment. That judgment bears, first, on the uniqueness of the past experience of blacks as compared with that of other minorities, which would account for their need to receive a special treatment of some kind; second, on the persistence in current American society of a disadvantage specifically produced by racial identification29 and affecting blacks with a particular intensity, that affirmative action would be designed to eradicate. Empirical evidence of the existence of such a disadvantage and hypotheses as to the processes that perpetuate it will be provided. In this respect, an important factor to consider is the impact of statistical discrimination, through which race is included as a relevant, information-laden element in the operations of inference and prediction made by individuals, with those operations resulting in negative and cumulative effects for American blacks. In this light, the ultimate goal of affirmative action would be to eradicate the specific disadvantage still derived from racial identification in U.S. society, a disadvantage arising from a set of negative expectations increasingly based on the objective existence of a correlation between “race” and class and from which no black individual is entirely insulated. In the second part of this book, I will then argue for a new interpretation of some of the key steps both in the Supreme Court’s case law on affirmative action and in the transformation of the justifications put forward in favor of that policy by drawing on Dworkin’s argument and its underlying assumptions. This interpretation is derived from the conjunction of the two following hypotheses: 1. The justification for affirmative action developed in chapter three has several implications that would make it particularly difficult for supporters of the policy to defend it explicitly (and for judges in particular). The inhibiting factors at work here include the specific conditions of acceptability of a legal discourse still characterized by a claim of neutrality and universality that requires an ostensible distantiation from the realm of political decision-making; the growing weight in American public culture of an individualistic “liberal

Introduction

7

30

tradition” leading to the rejection of any state intervention with perfectionist aims and of “social engineering” of all kinds;31 finally, the intrinsically paradoxical dimension of an argument that would explicitly present affirmative action as partaking of a government plan to transform the social meaning of race, since the deracialization of American society that one hopes to bring about can in all likelihood occur only as a side effect of some kind. 2. Yet, this meta-goal of reducing racial identification as a matrix of disadvantage for all black Americans implicitly but often decisively directs the evolution of the Supreme Court’s case law and of the justifications put forward in favor of affirmative action toward a strategic dissimulation of the antimeritocratic component of the policy and of how it actually operates. That dissimulation reflects a deliberate effort on behalf of affirmative action supporters, including judges, to better control the expressive dimension of the policy and minimize some of its negative side effects. Without suggesting that this is a fatal flaw of affirmative action policies, I will provide examples of such a dissimulation and reconsider in this light several developments otherwise noted by many affirmative action scholars: the intricate administrative origins of affirmative action and its initially opaque character for the very agents who were instructed to implement it (firms, unions, etc.); the extension of the notion of “discrimination” in the early 1970s; the project of replacing race-based affirmative action with a similar policy based on class, which would uphold the principle of preferential treatment while altering the criterion used for classifying individuals into beneficiaries and non-beneficiaries; finally, the current predominance of the argument justifying affirmative action as a way of promoting “diversity.” As a general matter, I will focus on the few yet admittedly important Supreme Court decisions in which one can witness a paradoxical phenomenon, namely the inclusion and nearly explicit affirmation in the case law itself of the requirement to dissimulate the specific nature of affirmative action as a condition for its legal validity. Here, the judiciary’s action is almost openly strategic. Among those decisions, Regents of the University of California v. Bakke will be examined in greater detail, from a perspective located at the intersection of political theory and intellectual history. In chapter six, I will take a closer look at some of the unanticipated consequences of that decision and argue that the notion of “diversity” is to a large extent the missing link between the reduction of racial inequality and multiculturalism, two issues the intrication of which in current American public debates I will also attempt

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to illustrate. Following the lead of historian David Hollinger’s innovative deconstruction and critique of the reconceptualization and instrumentalization by multiculturalist ideology of an ethnoracial classification system originally intended to identify only the main groups likely to be discriminated against, those concluding developments will thus focus on the genesis of contemporary American “cultural” pluralism. The Legal Status of Racial Classifications in the Supreme Court’s Case Law: A Preliminary Note As far as racial classifications by public and private actors are concerned, there are basically two sets of legal rules from which separate and partially divergent segments of the Supreme Court’s case law on equality and antidiscrimination derive. Aside from the 1865 Thirteenth Amendment abolishing slavery whether or not it enjoyed the active support of the government, the Constitution only restricts the action of state and federal authorities; in theory, the regulation of private conduct does not come under its purview. As a result, the case law considered in this study can be divided into two components: 1. The first one is related to the main statutory rule banning discrimination: the Civil Rights Act of 1964. This statute lays out the set of motives that cannot legitimately be invoked by private actors for refusing to enter into a transaction with an individual, or for taking a decision that would be detrimental to that individual, in a series of settings that the law identifies.32 2. The second one is related to the Fourteenth Amendment ratified in 1868. This constitutional rule applies to state action and proclaims the obligation for every state in the union to guarantee any person within its jurisdiction the “equal protection of the laws” (Equal Protection Clause).33 Besides, in the case law derived from that second, constitutional rule, the Supreme Court justices use a distinctive method of analysis about which a few words are in order.34 Such a method for assessing whether classifications defined and enforced by state authorities are constitutional under the Fourteenth Amendment is indeed necessary, since the law itself engages in classification all the time and cannot abstain from doing so: The legislator is constantly dividing up the social body into categories . . . that are then subjected to as many different regimes. The

Introduction

9

principle of equality . . . thus no longer requires the uniformity of legislation . . . [but] should be understood as a principle of nondiscrimination, banning only differences of treatment that are arbitrary and illegitimate.35 As a matter of fact, in order to identify those “illegitimate” classifications that the Equal Protection Clause will be held to prohibit, the courts will have to determine whether the distinction made by the legislative act under challenge is closely related enough to the end that the state is said to pursue. Litigation will revolve on the degree to which the means used by state actors fit their purported goal, with judgments of unconstitutionality being officially motivated by the excessively coarse nature of the classification at issue. The standard in use for operationalizing the antidiscrimination principle is thus one of instrumental rationality. To proceed with such an assessment Supreme Court justices use one of three degrees of scrutiny defined according to the more or less “suspect” nature of the criterion used in the classification under challenge. Under the “minimal scrutiny” or “rational basis standard of review” in use for most classifications, including those involved in economic and social legislation, to establish that a provision complies with the Equal Protection Clause, it is enough for the classification involved to be “rationally” related to a “legitimate” state purpose.36 In this case, the fact that the classification is not perfectly adjusted to that purpose is no ground for invalidation. Approximation is deemed tolerable, and the class of individuals delineated and targeted for a specific treatment of some kind by the legislator can be considered as “overinclusive” or “underinclusive” by the courts without this triggering a decision holding unconstitutional the measure under consideration. The very fact that only this minimal degree of scrutiny is applied to most classifications also testifies to the judicial deference that decisions made by democratic majorities, even those that may seem “improvident”37 enjoy; the courts are not entitled to substitute their judgment for that of the legislator, whose authority for striking a balance between competing considerations ought not to be restricted surreptitiously. Some classifications nevertheless undergo a more exacting scrutiny, which itself comes in two distinct kinds. The first one is “intermediate scrutiny,” under which the subdivision made by the legislator within the set of individuals under his jurisdiction must be “substantially related” to an “important” state purpose. This, for instance, is the level of scrutiny that gender-based distinctions are subject to.38 The second one is strict scrutiny. It comes into play when the legislation under review uses a

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“suspect” category, such as race,39 or may be thought to infringe on a “fundamental” or “constitutionally guaranteed” right, the paradigmatic example of which is the right to vote. If either of these conditions obtains, the classification involved must be “narrowly tailored” to promote a “compelling state interest,” which means among other things that there is no other nonsuspect means that would be equally effective in this respect.40 Since strict scrutiny tends to be “strict in theory, but fatal in fact,”41 in that it almost automatically leads to a decision holding unconstitutional the legislation under review (whereas applying minimal scrutiny invariably brings about the opposite result), identifying the appropriate level of scrutiny is often the key step in an equal protection case. And that judicial decision, insofar as it might be understood by the legislator as an indication of the probability of invalidation of any measure using the kind of classification under consideration, may well act as a deterrent. To conclude, as far as minimal scrutiny is concerned, the requirement to demonstrate the existence of a rational relationship between the classification under review and a legitimate state purpose is meant to ensure that the harm possibly inflicted on the members of certain groups by this classification is incidental, and that the law was not deliberately passed in order to put those groups at a disadvantage. As for strict scrutiny, it performs an identical function, except that it is only brought into play when it seems reasonable to suspect that the groups disadvantaged by the measure under challenge were intentionally targeted for such disadvantage, with the officially defined “goal” that this measure is supposed to advance being nothing but a sham, or when the exercise of a fundamental right is at stake. In all cases, this type of scrutiny is thus mainly intended to smoke out the intrinsically illegitimate motives possibly responsible for the law’s coming into existence.

PART

1

Assessing Justifications for Affirmative Action

As shown by sociologist John David Skrentny, initially affirmative action did not fit within an overall plan reflecting the state’s endorsement of a new, group-based conception of social justice. Instead, it gradually appeared to the administrators of some of the federal agencies responsible for fighting racial inequality—the Equal Employment Opportunity Commission1 and the Office of Federal Contract Compliance2 in particular—as the only instrument likely to bring about short-term, demonstrable results in relation to what was then frequently held to be the basic purpose of civil rights legislation, namely to promote the economic and symbolic integration of blacks into the American mainstream. A concern for the immediate appearance of efficiency typical of the logic of administrative pragmatism thus played the most decisive role in the emergence of that policy.3 Yet, once the programs were underway, one could hardly help acknowledging somehow the extent to which affirmative action departed from the usual operation of the meritocratic principle as well as from the standard of color blindness then seemingly enforced throughout most of the private sector by the Civil Rights Act of 1964, and discussing the justifications that may be put forward on its behalf. Therefore, an impressive profusion of writings in political and moral philosophy appeared in the early 1970s, with a view to assessing the legitimacy of affirmative action as an instrument of corrective justice. From 1973 to 1978, for instance, about 10 percent of the articles published in the journal Philosophy and Public Affairs dealt with this subject specifically.4 In addition, several decisions in favor of affirmative action handed down by district and appeals courts during that same period were also focused on the issue of compensation.5 Arguments of this kind nevertheless raise some insuperable difficulties, as will be shown in the following chapter.

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CHAPTER

ONE

The Corrective Justice Paradigm

The notion of corrective justice does not in itself provide any clue as to whether the entities targeted for providing and receiving compensation are of an individual or collective kind. I shall thus consider each case separately. Individual-Based Compensation Grounds for objecting to this variety of the corrective justice argument include the formal homology between affirmative action and the racist discrimination of the past, the relatively narrow set of conditions under which the corrective justice principle can rigorously be held to apply, and the excessive crudeness of the policy as an instrument for providing compensation. Affirmative Action and Racist Discrimination: Formal Similarities and Their Limits Can one reconcile the condemnation of the formerly prevailing racebased discrimination against blacks with a defense of current affirmative action programs, even though the latter use the same criterion for decision making and do grant a preference to those who were systematically disadvantaged in the past? That is the basic question to which corrective justice arguments must provide an answer. More often than not, they do so by further specifying the basis for such a preference, so as to demonstrate that it is not strictly identical to the one involved in the illegitimate

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varieties of preferential treatment. For while discrimination against blacks is grounded on the victims’ “race,” that is, a feature intrinsically irrelevant as far as distributive justice is concerned, affirmative action focuses on the analytically distinct trait of being a victim of prior race-based discrimination, a trait that may properly be taken into account as far as corrective justice is concerned.1 Besides, this alternative basis for differential treatment would indeed meet the requirement of neutrality, since it could work to benefit each of the two racial groups depending on which one was illegitimately discriminated against in the most recent past: “race” itself would only come into play as an intermediate category. As pointed out by Supreme Court Justice Antonin Scalia in a case involving an affirmative action program in contracting set up by the city of Richmond, Nothing prevents Richmond from according a contracting preference to identified victims of discrimination. While most of the beneficiaries might be black, neither the beneficiaries nor those disadvantaged by the preference would be identified on the basis of their race.2 Therefore, one of the reasons why Scalia so adamantly opposes affirmative action is because the group of those who might benefit from it is not defined narrowly enough to fall in line with the internal logic of the corrective justice argument: that group includes all members of racial minorities instead of the subset made up exclusively of victims of specific and judicially ascertained instances of discrimination. Not only is affirmative action inadequate in view of all of the implications of the corrective justice paradigm, but the distinction between the criterion involved in racist discrimination (“the fact of being black”) and that involved in affirmative action (“the fact of having been discriminated against because of one’s being black”) is also more ambiguous than it seems.3 For what kind of weight does the final segment of the latter phrase (“because of one’s being black”) actually carry? On closer scrutiny, a case can be made that it is only an additional, circumstantial piece of information intrinsically devoid of moral relevance, whose only raison d’être lies in its clarifying value. If it were not there, the distinction made above would not be as easily understandable: that is all. To be more specific, the criterion involved in affirmative action is actually a complex predicate made up of one core element (“the fact of having been (unfairly) discriminated against,” for whatever (illegitimate) reason) and some extra element of information as

The Corrective Justice Paradigm

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to the feature on which that discrimination happened to be based on (“because of one’s being black”). That extra information is obviously essential to sociological understanding and political judgment; yet, it remains inconsequential from a moral point of view. In fact, the moral requirement for compensation stems from the occurrence of the former injustice, not from the particular form of that injustice, namely, the fact of singling out “race” or skin color as a basis for differential treatment among all the other equally illegitimate bases for differential treatment. Race consciousness is not logically incorporated in the enunciation of the principle that members of groups that were formerly targeted for some unjustifiable kind of discrimination ought to be compensated for it; it is only contingently that it is bound to play a role in the application of this principle to the U.S. social and historical context. In short, the moral relevance of black identity is essentially indirect and derivative: it lies only in its definitional value, namely in the fact that it is indeed by “race” that groups eligible for corrective action will have to be identified. The Structural Requirements of the Corrective Justice Paradigm When one intends not only to prevent the reoccurrence of past injustices but also to eliminate their lingering effects, it is no doubt tempting to justify the policies set up to that end in terms of “compensation,” or “reparation.”4 Yet, for the notion of compensation to apply with its specific, narrow meaning, several conditions must be met. First, the objective harm done to a given individual (the victim) must be legally ascertainable. Second, that harm must be the result of a discrete act committed by an identifiable individual, who will then be made to provide the person that he has wronged with a “reparation” of some kind (by using only resources that he legitimately owns), within the frame of an essentially bilateral relationship.5 Then, compensation is about obtaining the best possible approximation of the state of affairs which, all other things being equal, would have arisen if the event to be compensated for had not taken place: it is an attempt to restore the status quo ante. As philosopher Robert Nozick explains, “something fully compensates a person for a loss if and only if it makes him no worse off than he otherwise would have been; it compensates person X for person Y’s action A if X is no worse off receiving it, Y having done A, than X would have been without receiving it if Y had not done A.”6 What is at stake here is not an overall reconfiguration of the existing social structures according to some alternative design: the notion of “compensation” does not encompass

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all redistributive measures aimed at reducing de facto inequalities. Only those inequalities demonstrably rooted in a former injustice that one can precisely identify are a target for remedial action. Finally, only those individuals personally harmed by the injustice involved are entitled to compensatory benefits and, conversely, only those individuals personally responsible for the actions having caused that harm ought to bear the cost of the remedy. The Inadequacy of Affirmative Action as a Corrective Instrument That inadequacy results both from a lack of symmetry and a lack of proportionality. The first difficulty about affirmative action as a corrective instrument lies in the fact that the actual operation of affirmative action policies does not meet several of the requirements mentioned above. As a matter of fact, the group of individuals who have wronged blacks through their discriminatory behavior is not coextensive with the set of those who bear the cost of affirmative action, most of whom have not done anything wrong. Symmetrically, from within an individual-centered perspective, in which “discrimination” against a “group” can only be understood as an elliptic expression meaning that individuals targeted for discrimination are necessarily identified by a feature that they possess along with other individuals with whom they make up that “group”, there is no denying that not all those eligible for affirmative action today have suffered from some legally ascertainable “discrimination.” As a matter of fact, the granting of the benefit provided through affirmative action is not even officially subordinated to a prior investigation designed to establish that they have. True, following philosopher James Nickel, one may then fall back on the assertion that the statistical correlation between “race” and the fact of having suffered from (some illegitimate) discrimination is arguably high enough to make the abovementioned inadequacy relatively unimportant. As a general matter, according to Nickel, discrimination is “illegitimate” if it is based on a characteristic that in itself is objectively irrelevant, such as race, or on an assertion erroneously positing a correlation between that characteristic and another, morally relevant feature. Conversely, should such a correlation in fact obtain as a result of some contingent historical process, it would then be possible to distinguish affirmative action from racist discrimination, since only the latter would be based on incorrect assumptions as to the relationship between race and other (negative) features.7

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A similar argument underlies the opinion authored by Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun in Regents of the University of California v. Bakke, where it is said that A case-by-case inquiry into the extent to which each individual applicant has been affected, either directly or indirectly, by racial discrimination, would seem to be, as a practical matter, virtually impossible . . . [however] there is nothing to prevent a State from using categorical means to achieve its ends.8 In this ostensibly pragmatic perspective, it is because of the obviously prohibitive cost of precisely delineating the set of individuals who deserve compensation for having personally suffered from past discrimination that affirmative action may well be justified. For given the time constraints that those in charge of allocating social goods are always faced with, they simply cannot proceed without indulging in generalizations. Equating blackness with victimhood the way affirmative action does is a case in point. It is because of the impracticality of applying the corrective justice principle on an individual level that affirmative action can be viewed as an acceptable second-rate option, an option that it would be unrealistic to dismiss simply on account of its (inevitable) imperfection. One should rather acknowledge the distinction between the ethical basis of affirmative action, namely, the need to compensate the victims of an injustice which happened to consist in race-based discrimination, and its modus operandi of focusing exclusively on “race” (or on sex) as a criterion for providing compensation, in line with the requirements of administrative rationalization. No doubt there will be a few cases of undeserved compensation, but arguably not as many as those cases where compensation would be deserved yet unavailable should one decide instead to make it conditional on the individual’s supplying some incontrovertible proof of discrimination, or so this utilitarian, justice-maximizing argument goes. Yet, aside from the fact that this argument has never been endorsed by a majority of Supreme Court Justices,9 its persuasiveness is bound to be limited in time, if only because the correlation between race and victimhood that it presupposes will decline as a result of the enforcement of antidiscrimination law.10 The empirical assumptions on which this justification of affirmative action is grounded are made vulnerable by the very achievements of the civil rights movement. The second objection that can be raised against affirmative action as an instrument of individualized compensation is grounded on the policy’s inability to meet a proportionality requirement. The cost of it is not

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allocated in accordance with white individuals’ guilt as far as the antecedent injustice suffered by blacks is concerned; in fact, far from it. At least in terms of jobs and college admissions this cost falls mainly on people who belong to a generation born after the occurrence of that injustice and who therefore can hardly be held responsible for it. There is no proportionality either in the relation between the extent of the damage suffered as a consequence of racial discrimination and that of the compensatory benefit to be obtained through affirmative action. That benefit is allocated in a basically random manner, even though fairness would seem to require that differences in the extent of the disadvantage experienced as a result of the injustice to be compensated for should be taken into consideration. For affirmative action to potentially work as an adequate instrument of corrective justice, one would need to endorse the hypothesis of a strictly equal distribution of the negative effects of past injustice, according to which the opportunities of all members of the victimized group––who in theory are all eligible for affirmative action––would have been restricted to exactly the same degree. That hypothesis is counterintuitive, to say the least. Group-Based Compensation In view of the inadequacy of affirmative action as an instrument of individualized compensation, why not retain the corrective justice paradigm while broadening the definition of the harm to be compensated for so that one can safely assume that all blacks have been affected by it and therefore ought to receive some remedial benefits as members of a collective entity?11 This was the approach taken by Justice Thurgood Marshall in Regents of the University of California v. Bakke when he claimed that a black person should not actually need to formally establish his status as a victim: It is unnecessary in 20th-century America to have individual Negroes demonstrate that they have been victims of racial discrimination; the racism of our society has been so pervasive that none, regardless of wealth or position, has managed to escape its impact.12 According to Marshall, since no black individual has been spared by the all-encompassing racism that permeates American society even beyond those legally ascertainable instances of discrimination, all blacks deserve compensation. Yet, the set of individuals who will bear the cost of that compensation remains to be defined.

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Some Disturbing Implications: The Personification of Racial Groups and the Dilution of the Notion of Responsibility Once individuals are no longer viewed as the only entities between which compensation may legitimately occur and all members of the victimized group are assumed to have some sort of claim to it, it may seem logical, symmetrically, to hold responsible for the payment of the “debt” involved the dominant racial group as a whole, whose components one would then view as being interchangeable to some extent.13 At least two points can be made in defense of this argumentative shift. The first one simply consists in asserting the hereditarily transmissible guilt of all members of the white majority. Yet, this notion of collective guilt, even aside from its unwelcome connotations,14 has a definite meaning only in those very specific instances where the deed to be considered is of an intrinsically collective kind, that is, “one whose description is not analytically equivalent to a description of the separate acts of the participants,”15 with the significance of such essentially complementary acts being utterly dependent upon the overall scheme of which they are a part (as in a holdup, for instance).16 The guilt of white individuals in relation to the injustice suffered by blacks as a result of past discrimination obviously does not fit this pattern. The second argument on which a defense of affirmative action as an instrument of collective compensation might be grounded suggests that, instead of focusing only on the “perpetrators” of an injustice, “it is legitimate to hold the beneficiaries of [that] injustice liable for compensation of its victims.”17 Thus, an individual’s accountability would no longer proceed solely from his having wronged another person but also from his having drawn a benefit from that wrong, whether or not he intended to do so. Belonging to the white “race” would then stand as an appropriate criterion by which to define all the recipients of unfair advantages specifically derived from the fact that blacks were previously excluded from many valuable positions. Considering that such advantages ought not to exist in the first place, affirmative action could be cast as a kind of compensation that may well be dismissed as operating in an excessively crude way, yet could not be held to be unfair as a matter of principle.18 Still, one may wonder whether this argumentative shift does not amount to dismissing the notion of responsibility altogether. Does not that notion imply that the person whose behavior is being morally assessed was actually in a position not to accomplish the act for which she is now held responsible? As philosopher Bernard Williams points out, for a proposition to be uttered at time 1 as a kind of blame, it should have been possible to present it at time 0 as a sensible prescription with

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which the individual under consideration would have been materially able to comply had she decided to do so.19 Yet, as a practical matter, deliberately rejecting any benefit that would more or less directly flow from the legal discrimination against blacks was not an option for white individuals, given the diffuse nature of such benefits. Not taking this fact into account amounts to challenging the principle that the realm of present responsibility and the realm of past decision ought to be coextensive, without having stated any good reason to do so.20 Finally, reverting to the reification of racial groups which plagues these two varieties of the defense of affirmative action as an instrument of collective compensation (whether one emphasizes the moral guilt inherited by all white individuals or their obligation to retrocede some undeserved advantage), one should also keep in mind that those who bear the cost of affirmative action may well identify not with the dominant majority but with another minority defined by religion or national origin and arguably discriminated against in the past. A minimally refined implementation of the corrective justice principle should probably take into account differences both in the degree of injustice suffered by each group now eligible for affirmative action and in the extent of the gains made by the distinct components of the “white majority” as a result, which partly depends on how early their immigration to the United States has been. In this respect, affirmative action is obviously not satisfactory. Indeed, it is hard not to notice that, as Justice Antonin Scalia pointed out in an article written before his appointment to the Supreme Court, those European “ethnic” groups who arrived most recently on American soil (Jews, Italians, Poles and so on) are the ones who, to a disproportionate degree, are the competitors with the urban blacks and Hispanics for jobs, housing, education—all those things that enable one to scramble to the top of the social heap where one can speak eloquently (and quite safely) of restorative justice . . .21 The Unfair Distribution of the Costs and Benefits of Affirmative Action The sarcastic argument of Justice Scalia brings into relief a shortcoming of the justification of affirmative action as an instrument of collective compensation: the blatant unfairness of the distribution of its costs over the group whose members are supposed to be held accountable. If the injustice to be remedied lies in the racial discrimination officially performed by state authorities,22 in view of the democratic nature of the American

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political system, should not an attempt be made to spread the cost of the remedy over the entire population of those in whose name such wrongs were committed? Even if one takes for granted the principle of groupcentered corrective justice, it is still a fact that this cost is concentrated on a fraction of the white population defined through a largely random process that only a series of extremely implausible hypotheses would enable to justify in relation to the internal logic of the compensatory paradigm. True, the element of chance that comes into play in identifying the “victims” of affirmative action does ensure some minimal kind of equality as it reflects the absence of discriminatory intent in this respect. Yet, the actual implementation of affirmative action may seem to detract from the widely shared intuition that if it is practically impossible to circumscribe the burden of compensation in such a way that it bears on the authors of the injustice or on those who most directly benefited from it, then that burden ought to be divided equally within the entire political community. In this respect, the distribution of the cost of affirmative action may be considered unfair. This is so because such a cost is borne primarily by the youngest fraction of the majority group, whose degree of responsibility for the injustice suffered by blacks as a result of racist, pre–civil rights movement state policies is arguably the lowest, and also because it disadvantages the working class and the middle class more than it does the more affluent segments of the white population.23 Symmetrically, affirmative action not only provides members of victimized groups with compensation on a random, unequal, and nonproportional basis, but it also tends to benefit qualified blacks the most–– even though the level of “qualification” of individuals competing on the job market is ultimately determined in relation to the rule of supply and demand, quite independent of any consideration of corrective justice. While it is always possible for the outcome of affirmative action to coincide with what would have been done if the corrective justice paradigm had been enforced all the way through, such a correspondence is entirely accidental: the actual criterion for awarding “compensation” remains distinct from and very loosely related to the legitimate criterion for doing so. The Restorative and Retributive Dimensions of Corrective Justice As shown above, the corrective justice argument for affirmative action raises insuperable difficulties, whether one considers its individual-based or group-based varieties.

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First, the requirements of symmetry and proportionality associated with corrective justice are not met: the individuals who bear the cost of the policy, that is, those whose application was turned down but would have been accepted had they belonged to one of the groups eligible for affirmative action, are usually not the authors of the injustice to be compensated for, nor is there any congruence between the set of legally ascertained victims of discrimination and the ensemble of those receiving “compensatory” benefits. In addition, as far as blacks are concerned, even if one considers that they have all been indirectly harmed by the stigmatization derived from slavery and from the de jure segregation that took place in its aftermath, the above-mentioned benefits cannot be modulated to fit the degree of harm experienced by them. Finally, should one take the bold step of applying the corrective justice paradigm to groups defined on the basis of race instead of individuals, affirmative action still remains unfair in that it redistributes resources only within the population of those located above a minimal threshold of qualification. Both the benefits and the correlated externalities are thus concentrated on fractions of the racial groups involved, defined through a process utterly independent of the endogenous logic of corrective justice. That being said, a case can be made that the notion of “compensation” has at least two distinct dimensions, the usual conflation of which tends to muddle the corrective justice defense of affirmative action: restoration and retribution. Drawing from some of Jon Elster’s analytical developments,24 I call “restoration” the attempted re-creation of the distributive pattern that would have obtained if the de jure segregation and discrimination experienced by American blacks had never taken place, through the hypothetical reconstruction of a counterfactual sequence of events. As for “retribution,” it denotes a moral perspective within which the author of the injustice ought to make amends for the wrongness of his behavior, such expiation being possibly reflected in another transfer to the victim in addition to whatever is required for offsetting the harm done to her (on the “restoration” side). The distinction between restoration and retribution is part and parcel of current antidiscrimination law. Thus, should an employer be held guilty of a violation of the 1964 Civil Rights Act, two kinds of remedies are available: on the one hand, “make-whole provisions,” the goal of which is purely restorationoriented, such as reinstating an employee unfairly discharged into the workforce and providing her with back pay and retroactive seniority, that is, with the benefits that she would have acquired had she not been discriminated against; on the other hand, in cases of intentional discrimination, retribution-oriented “punitive damages,” whose function is actually both to punish and to deter.25

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Yet, whether one considers the restorative or the retributive dimension of compensation, affirmative action remains hard to justify as an instance of it. As far as restoration is concerned, it might seem logical, if not entirely defensible, to circumscribe its benefits to those obviously disadvantaged blacks whose predicament most clearly seems to reflect the lingering effects of past discrimination; and as far as retribution is concerned, namely when the requirement for “compensation” arises not from the persistence of any observable damage, but only from the former occurrence of a reprehensible deed, why should affirmative action be restricted to women and members of ethnoracial minorities instead of being extended to all groups that at some point in American history have experienced discrimination ( Jews, Italian Americans, etc.), in the absence of any criterion for establishing a moral hierarchy among those past injustices whose validity would be commonly acknowledged? Therefore, most participants to the affirmative action debate more or less explicitly dismiss the strictly retributive view of that policy. As pointed out by Jon Elster, “compensation” awarded to the descendants of victims at the expense of the descendants of the authors of a past injustice that would have left no trace whatsoever would counterintuitively imply the existence of collective and transgenerational moral entities.26 Yet, “for purposes of distributive justice, groups don’t matter and the past doesn’t matter.”27 It is only because of the current persistence of an objectively identifiable remnant of past injustice affecting each black individual to a different degree that compensatory measures can possibly be justified. Hence the need to consider the adequacy of affirmative action in relation to the restoration project specifically in a more detailed manner.

The Methodological Difficulties with “Restorative” Compensation Again, I will first consider the difficulties raised by the individual-centered variety of the argument, before moving on to the issue of groupcentered restoration. Nozick’s Principle of Rectification: How Relevant Is It? The notion of restoration, that is, the reestablishment of the distributive pattern that would plausibly have obtained had some injustice not occurred, is actually identical to what philosopher Robert Nozick has termed the principle of rectification.28 That principle partakes of a theory famous for its

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wholesale rejection of any substantive definition of the concept of social justice. This theory itself must be briefly outlined before considering Nozick’s indirect contribution to the affirmative action debate. One of the main defining features of Nozick’s theory is that it runs counter to teleological or “pattern-oriented” conceptions of justice that ex ante posit an “end-state principle” of the “to each according to his/her ‘X’” variety, whether the focal criterion is desert, the marginal utility to be derived from the allocated good, or any ordered combination of variables—potentially weighed according to the nature of that good.29 Against “cybernetic utopias . . . that represent societies as designed or designable,”30 Nozick criticizes those egalitarian conceptions that would require the state to constantly interfere with the (formally) free choices of individuals. He also challenges the symbolic disjunction between the distributive sphere and the productive sphere that underlies such conceptions.31 According to Nozick, in order to decide whether a given distribution of social goods is fair, one must determine whether that distribution meets the one and only necessary and sufficient condition for fairness, namely, the fact of being “the end result of an unbroken chain of just transactions, beginning from a just original appropriation.”32 In this domain there is simply no criterion on the basis of which to derive a synchronic assessment of a given distributive pattern located somewhere in the transactional process; the quality of “fairness” can only be transferred from that process to its end result. For the process to be fair, the agents involved in such transactions must have acquired their property titles through legitimate means and their decisions must not have been coerced. It is therefore possible that “two structurally identical distributions” should not be “equally just”:33 their degree of fairness cannot “be identified apart from . . . the process that produced them,”34 which ought to be the object of a historical investigation. Implementing the principle of rectification thus requires the reconstruction of the entire causal chain linking the distributive pattern to its antecedents. Consequently, the only predicament in which affirmative action might work as an appropriate “rectification” mechanism is one where a black individual, discriminated against at time 0 when he was the most qualified applicant for a (government) job opening, would be hired at time 1 to occupy that same position (which would have become vacant again in the meantime), even though his level of qualification is now lower than that of at least one of his new competitors. Of course, such a combination of circumstances is most unlikely. In addition, the restitution thus performed would not have much in common with affirmative

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action strictly defined, since in that case skin color would only appear as a descriptive element of the injustice that occurred, the value of which is merely informative. As a matter of fact, the “preferential treatment” involved here is not based on anyone’s race, but only on one of the applicants’ having suffered some kind of illegal discrimination: had that black individual’s closest competitor been black himself, the “preference” would still have come into play. Thus, Nozick’s “principle of rectification” cannot be used to justify affirmative action per se, but only the existence of an occasional exception to the “meritocratic” rule exclusively designed to eliminate the effects of a prior violation of that rule. All things considered, that principle is just the logical counterpart of the enactment of any distributive rule, since the lack of provisions specifically designed to punish offenders and remedy the harm arising from the infringement of the rule would no doubt undermine it. The principle of rectification thus does not require any justification of its own, since the same reasons that account for the existence of a given rule also account for the necessity of not letting the effects of its violation stand. Yet, even if it may prove indispensable to temporarily abstain from enforcing the rule at stake in order to carry out the task of restorative compensation, as the previous example illustrates, the actual operation of affirmative action programs is only remotely related to this ideal configuration. Finally, aside from the conceptual difficulty of imagining the very existence of the individual eligible to receive compensation in the alternative environment that would have grown out of the nonoccurrence of a former injustice,35 the main problem lies in the absence of substantive prescriptions to be derived from Nozick’s theory, due to the essentially indeterminate nature of the principle of rectification. As a matter of fact, not only is it practically impossible for the human mind to reconstruct the unique chain of events that would have resulted from the inexistence of the infraction involved because too much unavailable information is needed; also and most importantly, even on a strictly theoretical level, since Nozick does not provide any clue as to what might stand as a “fair” appropriation or transfer, at each stage of the transactional chain, there is an infinite number of legitimate uses by each individual of her legitimately acquired possessions. The theory offers no criteria on the basis of which one might attempt to assess the relative plausibility of the many retrospectively conceivable scenarios and assign a concrete (if approximate) content to the compensatory task. Does that mean that, given such a paralyzing uncertainty, one must accept that the effects of past injustice will not go away and apply only the second of Nozick’s principles of justice, that is, make sure that transfers of resources are not

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coerced, starting at an arbitrarily defined point in time? Although Nozick himself does not yield to that temptation, he does not provide a well-developed argument for taking another course either.36 Besides, the status as well as the exact meaning of the reasoning that implementing the principle of rectification would require are not easy to grasp. First, one may wonder whether it is appropriate for speculative propositions to play such a decisive role in yielding authoritative prescriptions. Second, and most importantly, since the reasoning applies to transactions where the freedom of individuals is presumably reflected in their actual choices, this is a domain where one simply cannot assume the existence of a definable, factual truth waiting to be uncovered. This whole speculative endeavor thus rests on very shaky ground. Finally, moving beyond the discussion of Nozick’s theory, the restoration paradigm applied on an individual level raises yet another difficulty, namely, the practical impossibility of granting each individual who experienced discrimination the exact amount of preferential treatment needed to restore what would have been his or her competitive status had this injustice not occurred, given the remaining uncertainty about the effect that this improvement of his or her life chances would have had on the degree of effort that each would then have made. The Issue of the Time Frame Before taking a closer look at the connection between the principle of restoration applied at the level of intergroup relations and affirmative action strictly defined, one should take note of another potential difficulty with the corrective justice argument, namely, the risk of affirmative action’s undue persistence, for both empirical and conceptual reasons. First, at the empirical level, it would be unwise not to take into account the existence of a general tendency toward the preservation of entitlements of all kinds in contemporary democratic societies. As a matter of fact, it is highly improbable that members of those groups eligible for affirmative action will willingly accept the termination of that policy, even should the original reasons for its introduction be now less powerful than they were (or simply nonexistant). Insofar as it seems reasonable to assume that the permanence of a given institution is determined by the effects that it produces, and in particular by the benefits that it provides to those who will then be led to support it, there is no guarantee that the state will have—or believe that it has—enough leeway to end affirmative action once the policy has achieved its goal, assuming that moment can be identified in a nonarbitrary way.37 The expectations created by the very existence of affirmative action may well jeopardize the

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ability to end the programs whenever the corrective justice paradigm might require one to do so. Yet, the main difficulty arguably lies in the vagueness of the widespread statement that affirmative action, viewed as an exception to an otherwise valid rule, can only be justified as a temporary measure whose raison d’être is to help bring about a predicament in which it would no longer be needed.38 This in particular is the position defended by former president Bill Clinton in a famous speech: “Affirmative action should not go on forever . . . and it should be retired when its job is done. I am resolved that that day will come. But the evidence suggests—indeed, screams—that that day has not yet come.”39 Besides, although the Supreme Court has never gone so far as to make the constitutionality of affirmative action programs conditional on their time-boundedness, it has generally looked more favorably on those that contained fairly specific indications as to the conditions under which they might be terminated in the future.40 At the same time, although it is often said that affirmative action should only be implemented for an “interim period,”41 the duration of that period is almost never specified in time units. It is rather viewed, in a teleological perspective, as the time needed to bring American society to a preconceived state lying at the end of a transition of some kind. Yet, this requires identifying a positive criterion by which to assess the advancement of the compensatory process undertaken through affirmative action. Of course, one may always revert to the purportedly “pragmatic” view according to which one should not waste time worrying about this theoretical problem until society has moved much closer to this partly undefined state than it actually has, as far as one can tell from the current predicament of American blacks.42 Still, given the predictable tendency of the beneficiaries of affirmative action to define the underlying goal of the policy in such a way as one can argue that it has yet to be reached, a standard of racial proportionality in the distribution of social goods may well look like the most “prominent solution.”43

Restoration and Racial Proportionality: Is There a Defensible Connection? The fact that a policy presumably designed to eradicate the effects of past discrimination is actually predicated on an underlying standard of racial proportionality—as shown by the 1971 Supreme Court decision Griggs v. Duke Power Company44—reflects a set of empirical assumptions that are not always plausible.

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Before getting to the heart of the matter, however, one should remember that inside the Supreme Court itself, some proponents of affirmative action did not easily give up on the individual-based variety of the restoration paradigm. In Regents of the University of California v. Bakke, for instance, Justices Brennan, White, Marshall, and Blackmun boldly intimated that there was a “reasonable likelihood” that the white individuals bearing the cost of the policy were precisely those who, without the competitive advantage indirectly derived from racial discrimination, would not have been better qualified than the black applicants admitted through affirmative action.45 Thus, such programs would merely correct for an unwarranted increase in the probability of success for white applicants, an increase presumably distinct enough for it to be analytically circumscribed and practically withdrawn from its undeserving beneficiaries. Yet, even though the Court had admitted one year earlier that “[any] process of recreating the past [would] necessarily involve a degree of approximation,”46 that degree here was deemed excessive by a majority of the justices, and this rather awkward attempt to cast affirmative action as an implementation of Nozick’s principle of rectification was not repeated. As a matter of fact, the argument both relied on an artificial and highly improbable set of cascading assumptions and ignored the conceptual breakthrough initiated in 1971 by the Supreme Court itself in the Griggs v. Duke Power Company decision. Insofar as the moral value of the corrective justice requirement does not depend on the specific features of the original pattern but on the intrinsically reprehensible nature of the deed that came to alter it, the extension in Griggs of the notion of “discrimination” to all practices with a disparate impact on members of underrepresented groups, regardless of the motives involved, somewhat diminished the rhetorical persuasiveness of invoking the restorative compensation paradigm. At the same time it assigned to compensation a new goal: to promote in all occupational fields the racially proportional distribution of positions that presumably would have resulted from the absence of past discrimination.47 Yet, the validity of this last assumption may well be challenged. As a matter of fact, whatever the extent of past discrimination, nowhere is to be found an example of a society in which occupational positions are distributed among the different ethnic or racial groups in exact proportion to their numbers. The idea that “the colored people of the United States . . . should constitute one-eighth of the poets, statesmen, scholars, authors, and philosophers of the country” was thus famously ridiculed by the former slave and leading abolitionist Frederick Douglass.48 Implicitly attributing the whole extent of the statistical discrepancies on display to the effects of racial oppression amounts to an arbitrary reduction

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of the range of potential causes, which makes affirmative action “epistemologically problematic.”49 This is so since “a . . . conclusion that there is some causal connection between the past discrimination and a portion of the undesired result is used as a triggering mechanism—the predicate for an [injunction to] eliminat[e] the entire undesired result.”50 True, the ethnoracial distribution of the population holding jobs that can be ranked on a scale of income and prestige has an informative value as far as the range of opportunities actually available to the members of the different groups involved is concerned. As a practical matter, these opportunities can only be inferred from the observation of their actual achievements.51 Yet, it cannot be assumed that all economic gaps between groups reflect differences in the extent of the discrimination suffered by them. Rather than relying on a single explanatory variable to account for all of the discrepancy, one should at least consider the potential influence of other variables not directly linked to the degree of discrimination experienced yet statistically correlated with ethnoracial identity. As pointed out by economist Thomas Sowell, such variables arguably include age, place of residence and education. Considering the first of these three factors, while the median age of the members of the different racial groups has an obvious effect on their salary and on their numbers in the upper tiers of the occupational hierarchy (the low level of which for minority groups is often mentioned as an argument in favor of affirmative action), it is a fact that most groups eligible for preferential treatment are also younger. For instance, in 1980, the median ages of blacks, American Indians, and people of Mexican or Porto Rican descent were 22, 20, and 18 years respectively, as against 28 years for the entire U.S. population, 36 years for Italian Americans, and 46 years for Jews.52 Second, blacks remain disproportionately concentrated in the southern states, where income levels are lower than in the rest of the country. Third, when simultaneously discounting the statistically identifiable impact of education, age, and geographic location, the ratio between the median wages of black men and white men rose from 82.9 percent to 87.7 percent in 1992. When one also factored in the black-white discrepancy in the scores obtained on employment tests, that ratio reached 95.5 percent.53 In short, the extent of the discrimination suffered by any given group cannot be inferred from the degree of its statistical underrepresentation in any given position or income range without assuming that these groups do not differ with respect to other potentially influential variables, an assumption which, as a matter of fact, is likely to be incorrect. Similarly, in addition to the quantifiable factors highlighted by Sowell so as to qualify the impact of discrimination strictly conceived, other

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scholars have attempted to demonstrate that different ethnoracial groups have different attitudes toward education, and that those attitudes also influence the distribution of social goods among them.54 As a matter of fact, considering the distribution of income, there is no denying that at least some minorities defined by religion or national origin and formerly discriminated against are now more successful than the Anglo-Saxon Protestant component of the American population. Thus, in 1990, the income of households including at least one person of Jewish origin was about 155 percent of the average income of households nationwide. The same goes for Asian Americans (127 percent) and for Irish Americans (118 percent).55 Therefore, whether or not one subscribes to this reifying conception of culture as the ultimate factor accounting for the residual gap between the economic performance of ethnoracially defined groups (that is, the gap remaining after the effects demonstrably produced by those variables taken into account by the observer have been neutralized), it is still unjustified to design “corrective” measures in accordance with a standard of ethnoracial proportionality, because that gap is probably not exclusively related to past and/or present discrimination. True, in theory, one may well conceive of those “cultural” differences affecting the level of qualification achieved—and thereby influencing the distribution of social goods between ethnoracial groups—as being themselves a side effect of past discrimination, which might thus lead one to consider them as intermediate variables of some kind. If, following constitutional scholar Ronald Fiscus, one posits that those differences necessarily stem either from racism, in which case they would be the crystallization of adjustments that members of subordinated groups were forced to make, or from a natural discrepancy in individual aptitudes and talents related to race itself, once this last hypothesis is dismissed, racial proportionality logically stands as the obvious goal of the restorative compensation project.56 And yet, there is still one major conceptual difficulty: that of identifying the unit to which compensation is to be provided. Ultimately, the very existence of blacks as a salient reference group is actually inseparable from the injustice experienced by them, and the effort to mentally recreate the situation that would have obtained had the initial discrimination not taken place is bound to be hindered by the ontological impossibility, within this counterfactual representation that one is trying to construct, of conceiving the very group for which redress is being sought, since race, in this perfectly recreated universe, would have become as socially irrelevant as eye color, to use an often-made analogy.57

CHAPTER

TWO

The Diversity Paradigm

Although the discussion in chapter one may help clarify a number of analytical points, it is a fact that political and legal debates on affirmative action have now moved beyond the corrective justice paradigm to focus instead on the notion of “diversity.” Let us first consider how that theme emerged in the Supreme Court case law at the end of the 1970s. The Case of Regents of the University of California v. Bakke While affirmative action was originally conceived as a temporary measure primarily designed to make the conditions of blacks and whites less unequal, the policy’s range was immediately extended so as to include other “ascriptive” groups (women, Native Americans, “Hispanics,” and sometimes Asians), just before the proportion of Hispanics and Asians in the U.S. population began to increase dramatically.1 That increase in the number of individuals eligible for affirmative action symmetrically entailed an increase in the number of white men who might thereby be prevented from gaining access to valuable social positions. The policy thus faced much resistance, especially within the institution that channeled aspirations for social mobility and was (rightly or wrongly) perceived as epitomizing the meritocratic ideal: the universities and professional (i.e., medical and law) schools. Considering the unprecedented rise in the number of applications that these institutions were confronted with since the beginning of the 1970s, it is not surprising that they were targeted for the litigation that was to give rise to the first major Supreme Court ruling on affirmative action: Regents of the University of California v. Bakke.

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In 1974, Allan Bakke, a white man in his thirties, was denied admission to one of the University of California medical schools for the second time, while applicants with lower MCAT (Medical College Admission Test) scores than his were admitted to that same school. Those applicants were members of ethnoracial minorities—blacks, Asians, Native Americans, and Chicanos—for whom a specific admissions procedure had been set up: their applications were discussed separately from those of the other applicants, and they were to make up 16 percent of the freshmen class under the affirmative action program of the Davis medical school.2 Bakke challenged the legal validity of that program and argued that it violated both the 1964 Civil Rights Act3 and the Equal Protection Clause of the Fourteenth Amendment. The lawsuit received some unusually large media coverage and ended in 1978 with a decision, Regents of the University of California v. Bakke, in which the Supreme Court for the first time defined the conditions that affirmative action programs in higher education had to meet in order to be held valid. In some respects, the Court was evenly divided. One group of four justices—Chief Justice Warren Burger and Justices William Rehnquist, Potter Stewart, and John Paul Stevens—agreed with Bakke that any consideration of race in the admissions process was a violation of the Civil Rights Act, with, therefore, no need to consider the constitutional dimension of the case.4 Yet, another group of four—Justices Brennan, White, Marshall, and Blackmun—maintained that Title VI of the Civil Rights Act and the Equal Protection Clause of the Fourteenth Amendment ought to be considered as two sides of the same coin, with the former prohibiting the practices of nonstate actors which, had state actors been involved, would have stood as a violation of the latter. Viewed in this light, the act simply extended the scope of the restrictions imposed on the states by the Constitution to a fraction of the private sector, and since the University of California was a state educational institution to which the Fourteenth Amendment directly applied deciding on constitutional grounds was unavoidable. Besides, for reasons to be analyzed below, those four justices held that the affirmative action program under challenge did not violate the Equal Protection Clause. The ninth Justice, Lewis Powell, occupied the middle ground. While he agreed with the second group as to the need to refer to the Constitution (rather than to the Civil Rights Act only) and the refusal to make the admissibility of a college affirmative action program conditional on the existence of a prior violation of antidiscrimination law by the institution involved, he disagreed on the appropriate level of judicial scrutiny. Whereas the Brennan

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group decided to apply “intermediate scrutiny” on the ground that the affirmative action program set up by the University of California was obviously not motivated by animus toward members of the white majority,5 Powell rejected the idea that racial classifications by a state entity should undergo a more or less stringent degree of scrutiny depending on whether the individuals disadvantaged by them belonged to an already stigmatized minority. In his view, all such classifications ought to trigger strict scrutiny, the requirements of which were not met in this case.6 He thus joined the first group of justices in striking down the Davis affirmative action program as unconstitutional and ordering the admission of Allan Bakke, thus affirming the ruling of the California Supreme Court. At the same time, the portion of that ruling which prevented universities from taking race into account in the admissions process in any way was invalidated, since there was also a majority of five justices (Brennan, White, Marshall, Blackmun, and Powell) to consider that, first, Title VI of the Civil Rights Act did not settle the question, and second, some affirmative action programs in higher education could be held constitutional, even in the absence of some legally proven past discrimination by the institution responsible for introducing them. Yet, because those five justices did not agree on which criteria to use in order to define the set of constitutionally permissible programs, it was Powell’s opinion that ultimately proved decisive. The constitutionality of an affirmative action policy thus came to depend both on its more or less rigid character and on its explicitly defined purpose. In the absence of a court order to this effect, setting up a quota for members of specific racial groups, such as the one formerly in place at the University of California, was held to constitute a violation of the principle of equality enshrined in the Fourteenth Amendment. However, admission committees were allowed to take race into consideration in a flexible, case-by-case, individual-centered way, as part of a legitimate concern for promoting the “diversity” of the student body.7 It is out of this contingent process that diversity, as a practical matter, has become the only workable justification for affirmative action in higher education.8 The Road Not Taken According to Powell, the other arguments that one might be tempted to put forward in defense of the policy were in fact deficient. To begin with, the university’s affirmative action program cannot be supported as a means of remedying the effects of a legally ascertained, intentional discrimination previously performed by that institution itself,

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simply because no such discrimination ever took place.9 Yet, this is not the only alternative justification available. Why not, for instance, conceive of affirmative action as an instrument for indirectly helping the black community as a whole, under the assumption that an increase in the number of doctors from this disadvantaged and still much segregated group would improve access to health care for many of its members and therefore work toward a general betterment of their living conditions?10 Thus, whether black doctors are considered more likely to deliver medical care to other blacks or more capable of doing so optimally due to the greater trust that they would be able to inspire in their patients, the benefits to be drawn by some black individuals from the affirmative action program involved would extend to other group members. However, the program would not have negative externalities for the vast majority of the white population that would not be personally affected by its implementation. While Powell did consider this argument seriously, he ended up rejecting it too, yet without bringing out all of its implications. One of them is that, by emphasizing the material dimension of the advantages that the black population would stand to gain from affirmative action, that argument tends to equate the policy with one geared toward redistributing tangible resources, thus concealing the specific nature of its underlying purpose.11 Also, there is an unacknowledged tension between the main goal of affirmative action, that is, achieving the integration of blacks into the mainstream of American society, and the empirical assumption as to the density of in-group exchanges upon which the abovementioned justification is based. Specifically, the persistence of segregation (even for middle-class blacks)—which affirmative action is arguably meant to eradicate in the long run—is precisely what makes now plausible the hypothesis that an increase in the number of black doctors would result in an increase in the coverage of health care needs for the black population as a whole, without it even being necessary for medical school admissions committees to ask for formal guarantees from future practitioners about this expected “return on investment.”12 Finally, even assuming that the goal of increasing the volume and quality of medical, legal, and other services available to racial minorities is a genuine one and not merely a pretext, it would be more directly and more efficiently served by granting preferential treatment not to all minority applicants, but to individuals of any race antecedently committed to achieving that goal.13

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Bakke and the Denial of Political Judgment There is still one more argument to be considered, namely the one put forward by Justices Brennan, White, Marshall, and Blackmun, according to which affirmative action would be required to help members of groups severely marginalized by some kind of widespread, hard-to-pindown “societal” discrimination.14 For it is on this third argument that Powell focuses most of his critiques. In his view, judges are simply not in a position to indulge in the kind of “comparative victimology” necessary for selecting the beneficiaries of preferential treatment among all groups likely to think of themselves as deserving of it without giving up on the neutrality requirement imposed on them. Yet, to be fully understandable, Powell’s objection needs to be contrasted with the approach of constitutional adjudication that he implicitly challenges thereby, an approach derived from the famous “footnote 4” of Justice Harlan Stone’s opinion in the Supreme Court decision United States v. Carolene Products15 and of which legal scholar John Hart Ely has provided the most comprehensive theoretical account.16 Ely’s analysis is “focused exclusively on the process by which the difference in treatment under challenge came into existence.”17 It builds upon Justice Stone’s insight that there are some “discrete and insular” minorities who simply cannot be protected through the standard operation of democratic procedures. Because their members are faced with some widespread hostility that precludes the very perception of any possible convergence of interests between them and other components of the American population, they find themselves permanently left out of the temporary, ad hoc coalitions typical of the “pluralist” workings of the U.S. political system.18 Even voting cannot offset this longstanding marginalization, since the balance of power is not in their favor: whenever the exclusion of individuals belonging to a given group is consensual or nearly consensual outside of that group, elected officials cannot act to remedy that exclusion without jeopardizing their reelection. Hence the risk of a stalemate of the representative process, given such a radical breach between the interests of an oppressed minority and those of the “majority,” negatively defined by differentiation from the former. And this is a dysfunction that democratic elections are unlikely to rectify.19 Once the republican assumption of the homogeneity of the people no longer holds, some specific measures are needed to promote the ideal of a government geared toward advancing the common good, in addition to universal voting rights and the guarantee that those rights can be freely exercised. These specific measures are designed to reduce the risk of a “tyranny of

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the majority,” which is consubstantial to the principle of democracy itself.20 Judicial review, as an additional mechanism for perfecting the representative process, is arguably the most important one. In this light, the Supreme Court would be entrusted with protecting the rights of individuals belonging to one of such “discrete and insular” minorities by subjecting any legislative provision detrimental to them to the strictest level of scrutiny.21 However, when a given provision appears to be detrimental only to the members of the dominant “majority” presumably responsible for enacting it, as in the case of affirmative action programs, its constitutionality would be less doubtful, since the preliminary, cost benefit assessment leading to that enactment would present less of a risk of having been distorted by the interference of some invidious intent.22 This, for instance, is the view underlying Justice Stevens’ dissent in the decision Wygant v. Jackson Board of Education, where he draws a critical distinction between the animusinspired discrimination against a minority group and other kinds of differential treatment such as affirmative action, which disadvantages individuals belonging to the “majority” only as a side effect: the “decision to exclude a member of a minority race because of his or her skin color” is not identical to the “decision to include more members of the minority in a school faculty for that reason.” In Stevens’ view, only the former is constitutionally “suspect.”23 That is the kind of arguments that Justice Powell opposes in Bakke, yet without fleshing out all of the objections that one may actually think of. For instance, whereas Ely’s defense of the legality of affirmative action programs was largely predicated upon the assumption that such programs would be set up by the legislature,24 in the case under consideration the decision was made by the academic institution alone; that decision by University of California officials was not subject to popular approval and actually diverged from the choice made by the majority of the population in that state, when it was given the opportunity to decide.25 Given that the decision-making authority was located in a body not under direct democratic control, one may well argue that it should be all the more necessary to apply strict scrutiny in a case such as this one. Yet, it is on a related but distinct and broader difficulty inherent in the adjudicative principle identified in footnote four of Carolene Products that Powell focuses his criticism. After reminding the reader that the scope of the Equal Protection Clause now extends to all persons subject to the state’s jurisdiction and not only to blacks (the only group that the drafters of the Fourteenth Amendment initially had in mind),26 he proceeds to challenge the reifying oversimplification implicit in any reference to the

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white majority, of which Ely’s approach requires accepting a homogenizing, and thereby erroneous, representation. In fact, even aside from the somehow implausible nature of the assumption under which the better-off members of this “majority” actually responsible for setting up affirmative action programs would feel enough empathy for their less advantaged fellows not to underestimate the cost that they would have to bear as a result of such programs,27 the very existence of this reference group can hardly be taken for granted: “The white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals,” and it is obviously impossible for “all of these groups [to] receive preferential treatment.”28 In other words, the reason why Powell is not willing to make the degree of judicial scrutiny applicable to ethnoracial classifications depend on whether or not these classifications work to the disadvantage of members of marginalized “minorities” is because the United States population is made of no “monolithic majority”29 from which a given set of officially recognized minorities could then be distinguished. The dominant racial group itself is but an amorphous conglomerate that it is all too easy to disaggregate, a mosaic of minorities characterized by countless ethnic cleavages and more or less short-lived coalitions of interests: “The concepts of ‘majority’ and ‘minority’ necessarily reflect temporary arrangements,”30 and there is simply no objective criterion by which the Supreme Court could impartially identify one or several groups whose fate would deserve some “heightened judicial solicitude,”31 in that their nonsubordination could only be guaranteed by remedial programs of some kind. Even if affirmative action policies did manage to eradicate the effects of past discrimination on those groups that stood to benefit from them, they would inevitably fuel a cycle of competing and legally equivalent claims which, were they to be satisfied, would force judges into an endless spiral of cumulative exceptions whose logical end point would be none other than the abandonment of the equal protection principle altogether.32 All things considered, there would be no middle ground between selecting the beneficiaries of affirmative action in a way that may itself be considered as discriminatory and the dreadful prospect of an uncontrolled surge in the number of the programs involved. Yet, this does not mean that the handicaps suffered by American blacks do not differ both quantitatively and qualitatively from those of individuals of Italian or Irish stock, for instance. What Powell opposes is that the courts be “asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups,” with “those whose societal injury is thought to exceed some arbitrary level of tolerability

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[being] then . . . entitled to preferential classifications.”33 Even if it were “politically feasible and socially desirable” to cast affirmative action as a corrective measure predicated upon the sui generis nature of the African American experience and exclusively designed to undo the harm suffered by members of that particular group as far as possible, the Supreme Court could not legitimately do so, for this would require a comparative assessment involving “the kind of variable sociological and political analysis . . . [that] does not lie within judicial competence.”34 Also, beyond its being unduly “subjective,”35 such an assessment would have to be reconsidered every now and then: just when “preferences [would begin] to have their desired effect, and the consequences of past discrimination [would be undone], new judicial rankings [of victimized groups] would be necessary,”36 thus jeopardizing the minimal continuity required of constitutional adjudication. The courts would then have no other choice than to constantly alter legal rules accordingly, with no end to this self-perpetuating cycle of interventions in sight, an obviously unappealing prospect.37 Legislatures, on the other hand, may legitimately undertake this kind of assessment, despite the fact that it remains outside of “the realm of specifically legal solutions.”38 As Justice Charles Evans Hughes explained in West Coast Hotel Company v. Parrish: . . . the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The Legislature is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. . . . There is no “doctrinaire requirement” that the legislation should be couched in all embracing terms.39 Thus, Congress would be in a position to decide on the implementation of affirmative action programs for the exclusive benefit of members of the groups most severely discriminated against, to be identified through an openly sociological and political judgment. Yet, such a judgment does not lie within the competence of the Supreme Court, which leads Powell to reject the majority/minority distinction endorsed by Justices Brennan, White, Marshall, and Blackmun and to put forward another justification. The emergence of the diversity paradigm in the Bakke case thus ultimately appears as the offshoot of a claim to make decisions on legal as opposed to political grounds, a claim that arises out

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39

of a concern for the preservation of the institutional legitimacy of courts and results in the dismissal of those solutions that could only be derived from an obviously political judgment. The Ambiguities of “Diversity” in Justice Powell’s Opinion In fact, “diversity” is both a substantive argument for affirmative action and a placeholder for the demographic trends which, as a practical matter, required a reframing of the political and legal debate surrounding that policy. In this respect, the first major development is the dramatic change in the size and ethnoracial distribution of migration patterns toward the United States since the second half of the 1960s, after the quota system set up by the 1921 and 1924 laws designed to restrict immigration to its European and Protestant component was replaced by a color-blind scheme in 1965.40 From then on, family reunification became the main criterion for allowing someone access to U.S. territory and discrimination on the ground of national origin was banned, thus providing an external dimension to the antidiscrimination principle that had been enshrined in the Civil Rights Act one year earlier. While this legislative change in time led to a considerable rise in the proportion of American residents born abroad (even though that proportion is now still below what it was in the 1880–1910 period),41 more important here is the distribution of the newcomers within the U.S. ethnoracial classification system. As a matter of fact, compared with other “nations of immigrants” that are often made up of people coming from a small number of countries (England and the British Isles for Australia, Italy and Spain for Argentina, China for Malaysia), one of the distinctive features of American immigration over time is the extraordinary diversification of its components, a development further encouraged by post-1965 policies. Given that affirmative action benefits are not restricted to citizens, the 1965 law considerably broadened the set of individuals eligible for them, for out of the 20 million immigrants that it allowed to settle legally on American soil in its first 30 years of implementation, nearly 75 percent were in a position to benefit from such programs, even though those were originally intended to help American blacks.42 Whereas in 1960, blacks made up 96 percent of all individuals belonging to the four minorities of the “ethnoracial pentagon”43 (blacks, Hispanics, Asians, Native Americans), they only accounted for 50 percent in 199044 and 43 percent in 2000. It is because of that increase in the ethnoracial diversity of the American population

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originating in the 1965 law that the white/black dichotomy, according to Justice Powell, was now but one dividing line among many others, without a special status of any kind. In this respect, the “diversity” arising from the dynamics of U.S. demographic development thus appeared as a given fact altering the environment that affirmative action policies had to fit into and narrowing the range of arguments that one might persuasively put forward on their behalf.45 At the same time, in Bakke, within that more narrowly circumscribed argumentative space, intellectual diversity is presented as having an instrumental value in the educational sphere. In a perspective akin to that of John Stuart Mill,46 the variety of viewpoints and the interactions among students with different “experiences, outlooks, and ideas”47 are envisioned as a key element in the learning process and as providing an “atmosphere [of] speculation, experiment and creation”48 conducive to the production and diffusion of knowledge––arguably the ultimate purpose of any university worth this name. Assuming that ideas are not only the product of abstract speculation but arise out of the social experience of individuals situated within a specific, hierarchically structured context, a case can also be made that belonging to a racial minority does shape the worldview of its members, and Powell actually makes that case.49 While he cautiously underlines the internal diversity of racial groups, his analysis does consider such groups as units of reference to which one may ascribe a variety of features, including some that qualify as educational resources: “10 or 20 black students could not begin to bring to their classmates and to each other the variety of points of view, backgrounds and experiences of blacks in the United States.”50 Yet, the primary goal of this allegedly global project to enhance diversity remains somehow ambiguous, since Powell both lays emphasis on its specifically educational virtues and points out other advantages of a political nature that might be expected from it. Thus, beyond the benefits that diversity would bring from a strictly intellectual standpoint, it is important that “the ‘nation’s future [should depend] upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”51 This reflects a syncretic conception of diversity that simultaneously embraces two contrasting models of higher education: one that conceives the university as an institution exclusively geared toward fulfilling the specific mission of imparting knowledge; the other that sees it as a microcosm designed to reproduce the entire society on a miniature scale, with a view to better preparing citizens to participate in the operation of democratic institutions “in a spirit of tolerance and mutual respect.”52

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The Extension of the Diversity Paradigm in the Supreme Court Case Law Between the Bakke decision in 1978 and the early 1990s, at least two facts seemed more or less explicitly to confirm that the diversity argument as a justification for affirmative action had been endorsed not only by Justice Powell but by the Supreme Court as a whole. The first fact is the apparent marginalization of the opposite viewpoint emphasizing the pedagogical virtues of affirmative action as an instrument designed to demonstrate the superficiality of “racial” characteristics and their lack of correlation with any significant individual feature whatsoever. In the Wygant v. Jackson Board of Education decision of 1986, for example, this other instantiation of a forward-looking defense of affirmative action (as opposed to the backward-looking corrective justice argument) no longer appeared except in a dissenting opinion signed by Justice Stevens alone. None of his colleagues in favor of the affirmative action program eventually struck down by the Court saw fit to support his denunciation of the “false premises” and “utterly irrational” nature of racial stereotypes and his characterization of them as “illusions” to be “dispelled” by deliberately including more blacks in the population of high school teachers.53 Yet, it was in a 1990 Supreme Court ruling, Metro Broadcasting, Inc v. Federal Communications Commission,54 that the assumption of a connection between racial diversity and intellectual diversity was extended beyond the specifics of the educational context that Bakke had been exclusively concerned with. In that decision, the Court, by a majority of five votes to four, found that the affirmative action program in the award of broadcasting licenses to radio stations set up by the Federal Communications Commission (FCC) did not qualify as a violation of the Equal Protection Clause. It reached that result in two steps. On the one hand, it applyied “intermediate scrutiny” instead of “strict scrutiny” to the race-based classification under challenge, on the ground that Congress, and by extension all federal agencies under its control, had been invested under the Fourteenth Amendment with a special authority that required judges to examine with particular “deference” affirmative action plans of their making (even those that, as the FCC one, did not have “remedial” objectives strictly speaking);55 on the other hand, it extended the diversity argument. To be more specific, in the majority opinion, Justice Brennan first emphasized that in that case the white individuals disadvantaged by affirmative action obviously did not have any right to obtain the license—since

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that good was officially awarded according to “public interest” considerations—and could not even have formed “legitimate expectations” in this respect.56 Given that “the views of racial minorities continue[d] to be inadequately represented in the broadcast media,”57 he then concluded that the affirmative action program under challenge was justified by the federal authorities’ goal of promoting “diversity of broadcast viewpoints.”58 He thus endorsed Powell’s argument in Bakke, something which he had pointedly not done in 1978.59 That diversity, he thought, while providing an advantage to members of racial minorities, would “also enrich[es] and educate[s] the non-minority audience.”60 Without one’s assuming the existence of an automatic, always perceptible connection between minority ownership of licenses and broadcast diversity (an assumption that would involve stereotyping of an impermissible kind), Congress as well as the federal agencies under its supervision were indeed entitled to ground their decisions on the presumption that a correlation between these two variables existed “in the aggregate.”61 As for the objection made in Justice Sandra O’Connor’s dissent, according to which it would make more sense for the agency to try to directly promote the representation of “minority viewpoints” by considering not the applicants’ race but their capacity to offer programs reflecting such viewpoints, Brennan shrewdly retorted that it was precisely the ex ante determination of the substance of those viewpoints that would be both impracticable and illegitimate, since it would amount to unduly objectifying racial identities:62 the benefits of diversity can only be identified post facto. Yet, while Powell was alone in celebrating “diversity” 12 years earlier, that such benefits existed and were actually large enough to justify affirmative action programs in spite of that indeterminacy was now accepted by a majority of the Supreme Court.63 The Comparative Advantages of the Diversity Paradigm Compared with the different varieties of the corrective justice argument considered above, the diversity argument does look more promising in some respects. First, it is less vulnerable to the objection that the costs and benefits of the policy are distributed unfairly. Because it conceives affirmative action in a prospective and utilitarian perspective rather than in a remedial one and decouples it from the issue of identifying the authors and the victims of past injustice, this argument defuses the symmetrical

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objections emphasizing the innocence of the individuals disadvantaged by the policy, on the one hand, and the randomness of the process by which its most direct beneficiaries are to be identified, on the other. Indeed, if what one cares about is the promotion of “diversity,” whether the individuals who receive preferential treatment “deserve” it for having personally suffered from an injustice is of no importance. Therefore, the fact of including among them immigrants who came to the United States after the enactment of antidiscrimination laws and so cannot claim that they were victimized by the American government does not stand as an anomaly jeopardizing the consistency of the whole system anymore: the all-encompassing notion of “diversity” allows issues regarding the integration of blacks and new immigrants into the American mainstream to be subsumed under the same denomination. In addition, from a tactical point of view, the increase in the number of legitimate recipients of the advantages provided by affirmative action broadens the potential coalition of those who might mobilize on its behalf. Likewise, whereas in the “punitive” variety of the corrective justice paradigm the fact that the white individuals disadvantaged by affirmative action were identified in a random manner required a willingness to contend, against all odds, that all of them actually “deserved” to bear that cost, their claims of innocence now ring hollow, since no one accuses them of anything anymore. If such a cost falls upon them, it is so only because it is impossible, as a practical matter, to distribute it more fairly, not because they have a greater obligation to carry that burden than their fellow citizens.64 The diversity argument might then be in a position to decrease hostility toward affirmative action somehow, since it no longer (falsely) assumes that those disadvantaged by it are actually paying for an injustice that they committed (an assumption that cannot fail to trigger claims of innocence) but instead defends the policy as an instrument for promoting the common good. In that case, publicly focusing on that argument would indeed make sense, regardless of its actual shortcomings (to be detailed below): it may well be that the mere fact that it provokes less resistance among the “victims” of affirmative action—if indeed it does—could reinforce the policy’s ability to achieve another goal that might be assigned to it, thus influencing a judgment about its efficiency made from a strictly “consequentialist” perspective.65 Finally, if one moves from the corrective justice paradigm to the diversity paradigm, it is no longer necessary to tackle the difficulty of measuring the extent of the harm previously inflicted on the beneficiaries of affirmative action, and it is thus possible to dodge the methodological problems that arise in trying to identify the moment when the status quo

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ante would have been restored, at which time the policy, having reached its purpose, would not be justified anymore. Indeed, the question of how to identify the very criteria upon which that judgment might be passed is all but an easy one. On the basis of what empirical elements might it be claimed that affirmative action has attained its purported aim of eliminating those “distortions” due to the occurrence of past injustice? Can it legitimately be assumed that this compensatory endeavor should end as soon as there is an approximately proportional representation in valuable occupations of members of groups formerly excluded from them, such a proportional representation being the only focal point that might look logical enough?66 As we have seen, the answer to that question cannot be dissociated from an implicit (and inevitably controversial) assessment of the share ascribable to the discrimination suffered by such groups in the sequence of events leading to their current “underrepresentation” in the positions to be considered. Yet, the diversity argument, by making all questions of this kind irrelevant, avoids such intractable issues. Affirmative action does not appear anymore as a temporary exception, the elimination of which would retain a measure of arbitrariness. Conversely, maintaining it no longer depends on a judgment ascribing any residual disproportion in the distribution of social goods among the different racial groups to the occurrence of a former injustice, the effects of which ought to be erased entirely. As long as this statistical gap exists, and regardless of its causes, the policy may legitimately be extended for an indefinite period. The Shortcomings of the Diversity Argument67 The predominance of the diversity paradigm today should not conceal the many unsolved difficulties raised by the reasoning of Justice Powell in the Bakke case. The first difficulty lies in the partial and actually subordinate nature of this goal of “diversity” promotion which, far from being self-sufficient as a justification for the preferential treatment granted to members of some minority groups, will only seem acceptable in a limited set of cases, while that set itself is implicitly defined according to considerations that Powell dismisses as irrelevant.68 For let us recall that Powell comes out in favor of applying strict scrutiny to all racial classifications, arguing that judgments that claim to draw a distinction among them according to the benevolent or malicious intent of their authors are inevitably “subjective.” In particular, he strongly opposes the argument put forth by Justices Brennan, White, Marshall, and

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Blackmun, according to which only classifications that stigmatize minorities should be subject to strict scrutiny, since the notion of “stigma” strikes him as “amorphous” and devoid of a “clearly defined constitutional meaning.”69 Yet, one may wonder if his approval of some affirmative action programs more flexible than the one struck down in Bakke does not actually rely on judgments quite similar to those implied in the distinction he rejects. Consider the case of a university that wants to promote the “diversity” of its student body and intentionally discriminates against Asian applicants on the ground that Asians are overrepresented in selective institutions of higher education, thus treating that racial feature as a negative element without, however, defining a ceiling through an explicit quota (in accordance with Powell’s view that race ought to be taken into consideration on an individual, case-by-case basis).70 There is a good chance that in that case Powell would not have been willing to see in respect for “academic freedom” a “compelling interest”71 justifying the preferential treatment under challenge. Yet, on what ground can a measure of this kind be held unconstitutional, if not that Asians are a minority that was discriminated against in the past by the government and by private agents alike, a discrimination that the university’s decision would actually rekindle? By dismissing as he does the notions of “stigmatization” and “societal discrimination,” Powell denies himself the only criterion on which he might ground his tacitly established distinction between, on the one hand, the affirmative action exclusively aimed at including more members of some minority groups in a given population for the sake of “diversity” that he accepts in principle, and on the other hand, programs that, with the same focus on diversity, would deliberately disadvantage applicants from other, overrepresented minorities (e.g., Asians or Jews) that he would most certainly oppose. In short, Powell’s argument assumes an implicit limitation of the set of measures that one may legitimately enact in order to promote diversity, and the definition of these limits necessarily involves distinctions the importance of which he rejects. Also noticeable is the dearth of attempts to prove that there is actually a correlation between the ethnoracial diversity of the student body and the variety of the opinions voiced by its members, since it denotes the artificiality of this justification for affirmative action. If it is indeed the collective good that the university can hope to derive from the second of these two kinds of diversity that accounts for the admissibility of some (flexible) affirmative action, would it not be appropriate to check that those who benefit from the policy truly embody the specific viewpoint that they supposedly hold and that leads to their admission in the institution of their choice? As long as the virtues of “diversity” are supposed

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to justify imposing a cost on members of the majority group, that is, those whose application will be turned down while it would have been accepted if the diversity requirement had not been taken into account, would it not seem logical, in counterpart, to subject those who did benefit from affirmative action to the obligation of representing the “viewpoint” that is presumptively ascribed to them, even if this requires setting up some kind of monitoring mechanism? That this “solution” is not actually considered, if only because it would obviously conflict with the liberal value of personal autonomy, is nothing to complain about. Yet, it weakens Powell’s argument to a certain extent. As Will Kymlicka has suggested in a different context, the presumably beneficial side effects of diversity cannot be guaranteed––or even precisely identified––in advance, and so by definition cannot be used as a primary justification for the policies designed to promote it.72 Moreover, even in the event that a convincing empirical study indeed demonstrates that there is a statistical correlation between racial diversity and the diversity of opinions voiced in an academic context,73 it surely would not hold equally for all subjects taught. In fact, for some of them (mathematics, physics, etc.), those subjective interpretations determined by the individual’s specific social and cultural background obviously play no more than a minor role, and a plurality of worldviews among practitioners can therefore be deemed to be of secondary importance. The constitutive principle of the few disciplines of this kind precludes describing even that sort of “diversity” as a plausible factor of excellence, which narrows the range of cases for which Powell’s argument may be considered relevant. More importantly, there is also an underlying tension between the promotion of diversity as a justification for affirmative action and the implicit standard of proportional representation of all racial groups in the student body that the policy is predicated on. This standard simply assumes that the aspirations and choices of members of those groups in the area of education are on the whole identical. This amounts to arbitrarily circumscribing the realm in which “diversity” is considered to operate at the very same time that its virtues are being extolled. If this notion is taken seriously, there is no reason to exclude from the outset the possibility that some of the specific cultural features (attitudes, value systems, and so on) which, since Bakke, the beneficiaries of affirmative action allegedly carry also influence the distribution of their preferences so as to produce distinct patterns of academic performance, regardless of the impact of discrimination.74 If the grade point averages of blacks and Hispanics are lower than those of whites and Asians,75 why shouldn’t one see this merely as a confirmation that there are indeed deep cultural differences between those

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groups? Viewed in this light, the harmful nature of one of these particular patterns would only appear as such in relation to a criterion of assessment predicated upon an ultimate value other than “diversity” alone. Conversely, when diversity is celebrated indiscriminately, this carries implications that tend to conflict with the ideal of proportionality underlying affirmative action programs. In other words, it is impossible to reconcile the valorization of purely stylistic differences between groups defined on an ethnoracial basis and the rejection of other differences that, because they have negative consequences on the amount of material and symbolic goods obtained by group members, would still be seen as the product of past oppression without reintroducing an independently defined value of equality, whether openly or surreptitiously. In addition, once “race” is considered only as a proxy, as an intermediate category with no other value than that conferred on it by its statistical correlation with a set of “qualities or experience[s] not dependent upon [it]” but simply “associated” with it,76 one must still, on the one hand, provide a definition of that differentiating feature allegedly irreducible to the racial phenotype and whose relevance in the field of education is taken for granted, and on the other hand, take into account the residual inadequacy between that feature and the racial proxy. Insofar as it would remain theoretically conceivable, if not actually possible, to directly target the attribute that one is ultimately looking for, referring to that proxy always runs the risk of being described as a kind of discrimination against individuals who do have those characteristics that are deemed desirable yet belong to a “race” other than the one with which they are presumably associated. Discrimination of this kind could then only be justified by the need to reduce the cost of identifying the individuals carrying such characteristics, as part of an administrative rationalization of the admissions system. In this respect, however, the diversity argument does not fit within the legal regime regarding racial classifications. While Powell agrees on considering “race” as a proxy for a quality deemed to be immediately relevant to the admission of an applicant (her different “worldview,” which should increase overall “diversity”), the bulk of the case law derived from the main antidiscrimination statutes (the Civil Rights Act of 1964 and the Voting Rights Act of 1965) points toward the opposite principle, namely that, as a general matter, race ought not to be taken into account in decisions about the allocation of scarce resources. In particular, statistical discrimination, that is, a difference of treatment unfair to an individual of a given race and arising as a response to an existing correlation between that “race” and a property objectively undesirable in the

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decisional context under consideration, is unambiguously prohibited, regardless of the size of that correlation.77 This prohibition, which sets up a specific “informational constraint”78 by deliberately isolating race from other factors that individuals may legitimately consider within their mental calculations, applies to a wide range of legal domains, including employment and jury selection procedures (both in criminal and civil proceedings).79 Abandoning that prohibition in the academic context, as the Bakke decision actually does, stands as an unacknowledged anomaly jeopardizing the internal consistency of the U.S. legal regime, which is increasingly structured around a principle of color blindness and is theoretically immune to utilitarian, cost-benefit calculations. It is worth emphasizing that this disjunction is unrelated to the degree of truthfulness of the factual predicate underlying the statistical discrimination at issue. It is not the more or less accurate nature of race as a proxy for another, relevant feature of some kind that determines whether it may be taken into account. The extent of the “margin of error,” so to speak, does not enter the picture. The decision to outlaw discrimination on the basis of race does not depend on a measure of the correlation between the two variables involved and on where that correlation stands with respect to a predefined quantitative threshold. In fact, it is not even plausible that most race-based decisions are held to be illegal because race is considered not to be a good enough proxy. Many alternative proxies are arguably less efficient than race without their having been outlawed as a result. As a matter of fact, public authorities do not even bother undertaking a comparative assessment of the costs and benefits of using race as opposed to other proxies in a given predicament. And so while affirmative action may be criticized in the name of economic rationality, for all we know, the same goes for the color blindness requirement imposed on employers by Title VII of the 1964 Civil Rights Act, even though very few critics actually challenge it on that ground.80 What is deemed to be wrong with statistical discrimination is not that it is not efficient. Whatever degree of functionality that behavior might have as a risk-avoiding strategy, it is made illegal by a political judgment affirming the absolute unacceptability of using race as a reason for taking a decision disadvantaging anyone, the empirical validity of the underlying assumptions notwithstanding. Far from simply reflecting the social reality of which it is part and parcel, the law thus attempts to transform it by treating as irrelevant a fact, the information-laden nature of race, in order to make it disappear. It is in relation to this transformative agency that Justice Powell’s opinion in Bakke, at first sight, may look like an unacknowledged retreat.

CHAPTER

THREE

A Strategic and Consequentialist Perspective: Affirmative Action as an Instrument for Deracializing American Society

The objections to the two main justifications for affirmative action made in the first two chapters are not meant to suggest that another, more promising line of argument is unavailable. In this respect, the reconceptualization of the policy undertaken by the liberal-egalitarian1 philosopher and legal scholar Ronald Dworkin deserves a careful examination. As we shall see, Dworkin conceives of affirmative action as a more or less effective means of eradicating a specific disadvantage suffered by all black Americans that stems primarily from the still obvious correlation between “race” and class, a correlation which is itself the product of past injustice. In what follows, some interesting implications of this alternative argument will be underlined, most importantly the fact that it is based on an implicit, debatable yet ultimately plausible political and sociological judgment as to the irreducible distinctiveness of blacks’ past and present social experience. I will then proceed to describe some of the processes generating the specific disadvantage that members of this group are still faced with in more details than Dworkin himself does. But first, let us consider how this sophisticated argument of his fits into a broader conceptual framework. Dworkin’s Defense of Affirmative Action After outlining Dworkin’s general theory of equality,2 I will first examine the critical side of his argument, then its prospective, forward-looking component.

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The first point to underscore is the need to relate the interpretation of the Fourteenth Amendment’s Equal Protection Clause to a more substantial conception of equality than the minimal equality inherent in the Aristotelian principle of formal justice, since no immediately workable prescription can be drawn from that principle. As pointed out by legal philosopher Chaim Perelman, the principle of equality remains essentially indeterminate, since it merely holds that “people in the same category . . . should be treated equally,”3 with such “categories” remaining for the legislator to define. Since the Equal Protection Clause cannot reasonably be understood as enjoining the state never to draw any distinction among the individuals under its jurisdiction, the indifferentiation requirement at work here can only apply within the category of persons that the law itself has made into a homogeneous unit of reference. While it is true that the principle of formal justice, by guaranteeing that such legislation will be applied equally, protects individuals against discrimination by executive authorities, it still provides no clue as to the content of the substantive rule whose existence it assumes nonetheless. The “equal treatment” induced by the regular implementation of that rule alone is compatible with a variety of normative orientations, the intrinsically egalitarian nature of which is by no means guaranteed. Being value-neutral, the principle of formal justice, which basically amounts to a requirement of administrative fairness, is just the lowest common denominator of all the conceptions of justice that may serve as a basis for the initial categorization to which it remains logically subordinated, while it is that categorization that ultimately determines the treatment meted out to individuals.4 The principle itself is tantamount to a requirement of nondiscrimination in law enforcement, yet does not prevent morally unjustifiable differentiations from being incorporated into the very content of the law to be enforced. In fact, it may even be argued that the “equality” thus prescribed borders on tautology, since it does not really identify a requirement analytically distinct from the one imposed by the rule whose existence is being presupposed, a requirement that would have to be complied with in addition to that rule. On the contrary, it is nothing but the necessary result of applying such a rule to every element of the ensemble that the rule itself constitutes as an object of legislation; proclaiming the “equality” of treatment involved in the consistent enforcement of the rule does not add any conceptual value to its enactment.5 Since compliance with the rule implies granting equal treatment to people among whom it

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makes no distinction, equality is nothing but the logical consequence of the ongoing effectiveness of the rule. Insofar as it directly stems from the general character of its formulation, which is itself one of the conditions of its legal status, this equality is only an incidental one, devoid of any substantive value.6 Yet, if the principle of formal justice requires nothing more than the “impartial and consistent administration of laws and institutions, whatever their substantive principles,” so that “similar cases are treated similarly, the relevant similarities and differences being those identified by the existing norms,”7 what ultimately matters is the determination of the criteria by which two individuals, who are unavoidably similar in some respects and different in others, will be considered to be “similarly situated” or not. This process of legal qualification, on which the fact of whether the difference in treatment under challenge will be deemed “arbitrary” or not ultimately depends, can only occur ex ante. Because of its essentially indeterminate nature, the Aristotelian principle of distributive justice implicitly requires a positive definition of the kinds of treatment that the “equal protection” standard should absolutely prohibit: when it is the validity of the law itself that is in dispute, examining whether it does establish an unjustified discrimination within a group of otherwise similarly situated people requires referring to a principle external to the legislation, which cannot be derived from the principle of formal justice. In addition, the wording of the Fourteenth Amendment provides no indication as to the underlying value by which the courts ought to be guided in their constitutional adjudication. While it enshrines the concept of equality in the Constitution, it includes no prescription that might lead one to select one of the competing conceptions of it.8 The issue of defining the rights the nonrespect of which would stand as a violation of the Fourteenth Amendment’s Equal Protection Clause is therefore not legally settled. And it is as part of an ongoing debate on that unsettled issue that Dworkin puts forth an antiformalistic conception of equality that identifies as a “focal variable”9 the “respect” and “concern” that the government should bestow on every individual, a conception on which his argument for affirmative action will then be grounded. Indeed, the claim to universality that every normative theory of social arrangements must assert one way or another requires proclaiming the equality of those liable to be affected by its enforcement with respect to one preeminent variable, the very definition of which stands as one of the distinctive features of the theory. In this respect, Dworkin draws a distinction between the rule of equal treatment of individuals by state authorities, according to which people should have “the right to an equal

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distribution of some opportunity or resource or burden,” and the principle holding that all individuals should enjoy treatment as an equal, meaning that each of them has “the right . . . to be treated [by the state] with the same respect and concern as anyone else.”10 To better highlight the difference between these two potential answers to the definitional question, he uses the following example: If I have two children, and one is dying from a disease that is making the other uncomfortable, I do not show equal concern if I flip a coin to decide which should have the remaining dose of a drug.11 If one did, the very survival of the first child would be given the same weight as the comfort of the other one. Yet, the rule of equal treatment would not have been breached. Hence the idea that this rule should always remain subordinate to the more fundamental and properly constitutional principle12 of equality in the concern shown by state authorities for the individuals who will bear the consequences of their decisions: “equal treatment” may or may not proceed from that principle, depending on the circumstances of the case at hand.13 Viewed in this light, the only “right” that the white applicant burdened by affirmative action actually has is “that his interests be treated as fully and sympathetically as the interests of any others when the law school [or university] decides whether to count race as a pertinent criterion for admission.”14 While that burden must be considered within the preliminary process of identifying the “public interest” to be promoted, there is no guarantee that it will not be counterbalanced by the “collective good” that may derive from more members of racial minorities gaining access to higher education. Another example helps to illustrate the legal relevance of this distinction between equal treatment and treatment as an equal. When the city of Jackson, Mississippi, after having been ordered to end the segregation of public swimming pools, sidestepped the court’s desegregation order by closing all the pools rather than authorizing blacks and whites to use them together, the question arose as to whether that decision itself amounted to a violation of the Fourteenth Amendment’s Equal Protection Clause. In a 1971 ruling, Palmer v. Thompson, the Supreme Court held that it did not, arguing that the material effects of this measure on the two groups were absolutely identical, in that it deprived them equally of a leisure activity that, in itself, obviously could not be described as a constitutional right.15 Yet, this “equal treatment” appears as such only in relation to an exceedingly narrow focal variable, namely the fact of “being able to swim

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in a (public) place tailored to that end.” If one had considered the requirement that state authorities should treat blacks as equals and so refrain from any initiative stigmatizing them, the decision of the city of Jackson could have been struck down under the Equal Protection Clause. It is in order to be able to eliminate such measures whose objective impact on members of the two racial groups may seem identical that other liberal legal scholars like Paul Brest,16 and most importantly John Hart Ely, embraced a “motivational” interpretation of the equality principle enshrined in the Fourteenth Amendment. Yet, it is worth noting that the most thoroughly elaborated alternative to the “fusion of constitutional law and moral theory” advocated by Dworkin,17 John Hart Ely’s theory of constitutional adjudication, in fact relies on a substantive definition of the value of equality strikingly similar to that more explicitly acknowledged by the author of Taking Rights Seriously. On the face of it, Ely’s ambition consists in defining a strictly procedural approach of judicial review, one that would not force judges to embrace substantive principles that may clash with the political choices of legislative assemblies. In his view, the only way of answering the countermajoritarian objection emphasizing the allegedly undemocratic nature of some unelected judge’s striking down as unconstitutional a law voted by the representatives of the people is for judges to rectify only those distortions of the representative process that measures infringing upon the rights of minority group members would necessarily reflect. Only thus could one legitimate the precedents handed down by the Warren Court, especially their desegregationist component.18 For while the courts are both well qualified to detect and punish irregularities in the public decision-making process and endowed with the legitimate authority to do so, they are neither one nor the other when it comes to ruling on matters involving the definition of social values and goals, which is supposed to be the exclusive domain of the democratically and temporarily elected legislators.19 The Supreme Court should thus confine itself to the role of an umpire with no task other than to remedy the “systematic malfunctions of the political market,”20 by revoking those advantages unduly obtained by some of the competitors. Yet, a case can be made that such a clear-cut distinction between the realm of procedural irregularity and that of substantive transgression does not really hold. True, the equal access of citizens to political participation, which is Ely’s paradigmatic example, does not imply that the costs and benefits of state action ought to be distributed equally among them.

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However, the idea that the constitutionality of a given distribution of such costs and benefits does not depend at all on its conformity to a preconceived pattern and should be determined only by reviewing the process of which it is the outcome (with the distributive configuration itself being just a clue as to whether that process might have been corrupted somehow)21 raises the following difficulty. Since it is still possible that a minority’s “interests,” even if actually factored into legislative calculations, turn out to be systematically frustrated simply as a result of the operation of the majority principle, a criterion must be found by which to identify cases where that frustration ought to be considered constitutionally impermissible. According to Ely, that criterion is merely whether an essentially illegitimate motivation has permeated the decision-making process leading to a government decision, a fact to be determined by an investigation that the courts are well qualified to undertake.22 Thus, the discrete and insular minorities about the protection of which judges ought to be particularly concerned are defined as groups that keep “finding [themselves] on the wrong end of the legislature’s classifications, for reasons that in some sense are discreditable.”23 In other words, their isolation and distinctiveness would reflect a measure of animosity toward them. Yet, in itself, this animosity cannot be what defines a group deserving of some special protection; the key factor is rather the absence of valid justifications for it.24 As for this unjustifiability, it ultimately stems from the violation of a principle that Ely himself, quoting Dworkin, identifies as “equal concern and respect” for all individuals under state jurisdiction.25 In his effort to “combine[s] . . . Dworkin’s equality principle . . . with claims of democratic relativism,”26 the author of Democracy and Distrust ends up relying mostly on Dworkin at a key step in his reasoning. Still, the problem of identifying the ultimate foundation of this postulate of moral equality among individuals remains largely unresolved. What might be the natural attribute common exclusively to all human beings, by virtue of which they should all be granted equal respect by the government? Reviewing the answers most often given by liberal philosophers, Robert Nozick mentions the potential for suffering, the faculty of abstraction, free will (the fact that human behavior is not entirely determined by sensorial stimuli), and self-consciousness, thus suggesting the difficulty of singling out a mediating quality that would encompass all these more or less distinctive features and whose strength as a source of moral obligation would be universally recognized.27 Aside from the problem of having to choose among a plurality of plausible humanity-defining attributes, there is also a danger in focusing on

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any property with respect to which human beings would demonstrably differ. The selection of any performance criterion would necessarily lead to acknowledge among individuals an objective inequality that one could then be tempted to use as a justification for treating them with unequal concern. Hence the need to provide of the “quintessentially human” attribute a definition vague enough for it not to admit of different degrees of possession. John Rawls, for instance, mentions in this connection the capacity to have “a conception of the good . . . and a sense of justice.”28 More prudently still, Charles Larmore chooses to emphasize equality in the “capacity for working out a coherent view of the world . . . , whether or not [one] exercise[s] this capacity autonomously and experimentally, or through the uncritical acceptance of traditions and forms of life.”29 Thus, rational self-determination and the conformity of individual behavior to freely embraced moral principles remain within the realm of potentiality, a potentiality presumably universal but of which most major liberal theorists are careful not to give a definition that would clearly indicate what kind of conduct would reflect its realization. Yet, insofar as this determinative and essentially nonquantifiable property must be defined in such a way that the statement according to which all human beings are equally endowed with it cannot be proven wrong, one may wonder whether that statement still retains any truly descriptive value whatsoever. Under the guise of a statement of fact, is it not rather a concealed prescription, an exhortation enjoining the person to whom it is directed to consider as true this otherwise unverifiable equality? How can the principle of equal respect of individuals be justified by an axiom that, all things considered, actually reiterates it while deceptively pretending to be of a factual nature? Dworkin is obviously aware of this problem, and deals with it only by describing that principle as a “postulate of political morality,”30 a postulate which, because of its consensual nature, would not actually need any justification. Finally, before we consider Dworkin’s argument about affirmative action strictly speaking, a few words are in order about the nature of the connection that he makes between the imperative of preserving individual rights and the utilitarian principle that he nonetheless ends up endorsing in some cases. As Robert Nozick aptly shows, these two elements—utility and rights—can be related in two contrasting ways.31 The first option consists in incorporating the rights to be protected into the synthetic variable that utilitarian calculations aim at maximizing. In particular, one could imagine assigning to those calculations the goal of minimizing the overall volume of violations of individual rights, which, as a practical matter, would

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imply accepting some infringements so as to avoid others of greater magnitude. In contrast, the second option, the one favored by Dworkin, is to consider respect for such rights as a side-constraint on state action, in which case, rights, instead of being included within the object of the comparative assessment that the utilitarian principle requires, would negatively delineate its legitimate field of implementation. The concept of “right” can then be described as an “anti-utilitarian concept,”32 in that respect for individual rights should never depend on considerations of utility, however defined.33 For Dworkin, rights refer specifically to a category of expectations the frustration of which would be an injustice in all cases, regardless of the extent of its possible contribution to increasing utility within the relevant community.34 The obligation not to violate such rights thus circumscribes ex ante the range of measures that state authorities may take to promote the common good, thus delineating a perimeter within which the utilitarian principle ought not to apply. As far as affirmative action is concerned, this entails a division of the argument into two successive, lexically ordered35 steps. First, it must be determined whether affirmative action infringes on a basic constitutional right that white individuals might have—a right strictly independent from any predictive judgment as to the social effects of the policy. Once the inexistence of such a right is established, however, a residual, not specifically justified kind of utilitarianism is allowed to prevail, and affirmative action ought to be assessed according to its efficiency as an instrument for promoting a social good the nature of which must also be defined.36 The Negative Side of the Argument According to Dworkin, the principled objections against affirmative action usually reflect a confusion made between three analytically distinct assertions that ought to be considered separately. The first assertion denounces affirmative action as violating the “right” of an individual applicant to have her application considered on the basis of her “merit” alone. In this respect, instead of simply observing that it is customary for admissions committees to take into account a broad range of factors beyond grades and test scores (the applicant’s place of residence, his athletic aptitudes, and so on) quite irrespective of affirmative action programs, Dworkin takes the more radical position that individuals have simply no right to be judged according to any given consideration or set of considerations. For even assuming that the definition of the criteria by which “merit” will be identified is not itself controversial,37 one may well, on Rawlsian grounds, consider the system of distribution produced

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by the meritocratic principle to be intrinsically unfair in that it is bound to reflect the initial distribution of talents and social advantages, a distribution which is partly random, strongly unequal and morally irrelevant.38 As a matter of fact, there is no denying that the qualifications which, in the absence of affirmative action, would have enabled those whites disadvantaged by the policy to obtain the good that they did not obtain have been acquired at least in part thanks to a combination of assets (intelligence or its innate component, the social and cultural resources provided by a favorable family environment, an aptitude for hard work and so on) which themselves are “undeserved.” Therefore, as far as the goal of social justice is concerned, to a certain extent, they ought to be viewed as attributes ideally separable from the person who happens to carry them. This is why the admission of an applicant to the university of her choice should not be conceived as a reward for the superiority of her previous performance over that of her competitors, as when a medal is awarded to the winner of a sporting event.39 Whereas the medal does stand as a kind of retribution for a fait accompli, in the case of university admissions the relevance of past performance lies mostly in its predictive value as far as future performance is concerned, while “performance” itself is to be assessed in reference to a common good the definition of which is likely to evolve over time: Law schools do rely heavily on intellectual tests for admission. That seems proper, however, not because applicants have a right to be judged in that way, but because it is reasonable to think that the community as a whole is better off if its lawyers are intelligent. That is, intellectual standards are justified, not because they reward the clever, but because they seem to serve a useful social policy.40 Therefore, as long as the increase in the number of members of racial minorities among university graduates can be conceived as partaking of the achievement of a (still to be defined) common good, considering “race” in the admissions process within the frame of an affirmative action program could thus be justified on similar grounds. The second of the three assertions mentioned above holds that affirmative action violates the applicants’ right that only their individuality should be taken into account in the admissions process, without any reference to their membership in any “group” whatsoever. Yet, as a practical matter, and quite independently of affirmative action, this is simply impossible: as any other administrative procedure, the admissions

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process is subject to time constraints and cannot escape a trend toward rationalization that necessarily involves using rough generalizations of some kind. Dworkin takes the example of the minimal test score requirement defining a threshold under which an applicant’s file will be automatically rejected. This is an extremely widespread practice that is hardly ever challenged, although it makes the fate of each individual depend on his inclusion in a group defined by the position that it occupies with respect to this predefined cut-off point. An applicant with a score below the threshold will be rejected on the basis of that information alone, without consideration of any of his other relevant characteristics not reflected by this one-time performance. This unfortunate applicant could legitimately consider that he was not really treated “as an individual” since, because of his inclusion in the dismissed category, aspects of his personality that may have worked in his favor were not taken into consideration. Had he been granted an interview, he might have been able to demonstrate qualities remarkable enough for the admissions officers to decide to admit him despite his mediocre score on the test. If that opportunity to make up for his poor score is not offered to him, it is essentially because the probability of such a satisfactory performance in the additional interview is deemed too low with regard to the cost of organizing such an interview, a judgment remarkably similar to those involved in the instances of statistical discrimination already mentioned in that it also disqualifies an individual because of his membership in a given class.41 In short, one can only challenge the specific criteria used to delineate a reference group; as a practical matter, rejecting the very notion of a reference group is not an option.42 The third and final argument that might be directed against affirmative action consists in asserting the right of applicants to a valuable position that their race should not be taken into account in considering their application. Since the “constitutionalization” of that “right” cannot be grounded on the original intent of the Framers43 (an approach of constitutional interpretation that Dworkin rejects anyway),44either such a right must be a logical extension of a broader constitutional principle, or the acknowledgment of it must be strictly necessary to justify decisions that are now perceived as major landmarks of the Supreme Court’s contemporary case law (with Brown v. Board of Education of Topeka being a case in point).45 If one considers the first option, the only general principle on which a rule of color blindness might be grounded seems to be the

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impermissibility (or at least the constitutionally “suspect” nature) of all kinds of classifications relying on immutable features, that is, traits that their bearers have no control over. At any rate, it is this inalterability, and the correlative impossibility for individuals to modulate their behavior so as to be included among the beneficiaries of affirmative action, which seems to trigger a feeling of injustice among those who do not take advantage of that policy.46 In addition, the Supreme Court has sometimes suggested that this criterion might have some legal relevance. In Frontiero v. Richardson (1973), for instance, the Court held that “the imposition of special disabilities” upon a group defined according to “an immutable characteristic determined solely by the accident of birth” such as sex, race, or national origin “would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility.’”47 However, the truth is that in contemporary American law there is no “principle” under which all distributive decisions that bring into play factors lying outside the realm of individual responsibility should be considered suspect. In the United States as elsewhere, for instance, one encounters many practices that disadvantage people with lower cognitive abilities yet are not held unconstitutional because of their otherwise obvious social utility, even though the individuals involved do not have control over their predicament any more than blacks do. Conversely, the principle that state authorities should be allowed to take into account the physical disabilities with which some persons are afflicted and the special needs that they entail is also widely accepted, despite the fact that these infirmities are also involuntary.48 True, in the latter case, the classification made can easily be related to a legitimate government objective. Yet, given that this condition of validity holds for all classifications, and not only for those that bring into play immutable individual characteristics, the inalterability of the basis of classification used in this case has no determinative value. Unless there is a particular reason to consider “race” differently from these other equally unavoidable features, the only question to ask about affirmative action would be whether it could reasonably be conceived as an instrument for promoting a valuable social goal. According to Dworkin, the only factor that could justify being particularly cautious about using race as a criterion of public policy is the disastrous history of the segregation previously imposed on blacks as a mark of infamy. Yet, as far as affirmative action is concerned, the potential disadvantage suffered by whites, far from being motivated by animus against or lack of consideration for them as a group, results from a

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utilitarian calculation similar to that which, for instance, justifies barring people from some valuable positions if they are not considered smart enough: while it is true that a white applicant with less than outstanding Scholastic Assessment Test (SAT) scores and whose application was eventually rejected might have been admitted into a first-tier university if he had been black, “it is also true, and in exactly the same sense, that he would have been accepted if he had been more intelligent . . . . Race is not, in his case, a different matter from these other factors equally beyond his control.”49 The disadvantage that strikes him is similar to the damage suffered by the losers of the “meritocratic” game in that, in both cases, considerations of social utility prevail. If such considerations are strong enough to overcome the reservations arising from the influence that some inalterable individual traits have on the final distribution of social goods when only “merit” is taken into account, it is hard to see why this could not also be true as far as affirmative action is concerned, provided the policy does help promote a valuable social goal. Having disposed of the notion that color blindness could be defended as a logical extension of a broader, uniformly applicable principle under which any classification based on an immutable characteristic would stand as a violation of the Fourteenth Amendment, Dworkin then undertakes to show that the termination of de jure segregation does not require enacting a rule that state authorities ought to never take race into account, but can also rely on a different interpretation of the Equal Protection Clause that does not condemn affirmative action. In his view, one of the major weaknesses of the “principle” of color blindness is that it does not specify the nature of the wrong inflicted on blacks by the former system of de jure segregation, a wrong whose existence was the triggering factor of the Brown ruling. In contrast, and in relation to his understanding that to justify affirmative action convincingly he must bring to light the main feature that distinguishes it from the racist discrimination suffered by blacks, Dworkin locates the matrix of unconstitutionality in the meaning with which segregation was invested, rather than in the deprivation of material goods that its victims experienced as a result. From this perspective, which emphasizes the symbolic dimension of social practices, individuals would thus have a right, not to not being disadvantaged on the basis of race, but to not being disadvantaged on account of the contempt or hostility for their race, in short, a right to be treated as an equal. The only intrinsically illegitimate racial classifications would be those that––explicitly or not––rely on a claim by state authorities that one of the groups thereby identified is morally inferior, a claim that would ostensibly debase and stigmatize its members. To decide on the constitutionality of

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race-based classifications, one would have to look both into their effects and their underlying purposes, on a case-by-case basis.50 This conception of the Equal Protection Clause as being tantamount to a principle of non-stigmatization is not without precedent. For example, in Strauder v. West Virginia (1879) the first Supreme Court decision pertaining to the issue of racial equality since the Civil War, it was held that the trial of a black defendant by a jury from which blacks were formally excluded did stand as a violation of the Fourteenth Amendment, since that Amendment was meant to protect freed slaves “from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them to the condition of a subject race.”51 Similarly, even in Plessy v. Ferguson, the 1896 decision in which the Court upheld racial segregation in railroad coaches, the majority opinion suggested (disingenuously) that the segregationist legislation under challenge would indeed have been held unconstitutional had it had the effect of “stamp[ing] the colored race with a badge of inferiority,” whose existence a majority of justices remained unwilling to acknowledge.52 Also, in 1944, in Korematsu v. United States, the Supreme Court found it necessary to mention that the Equal Protection Clause was specifically aimed at preventing measures that would reflect “racial antagonism,”53 rather than all race-conscious provisions. Finally, 10 years later, it again emphasized the importance of stigma as an inconstitutionality-triggering factor in Brown v. Board of Education of Topeka.54 And as a matter of fact, only by conceiving the Fourteenth Amendment as incorporating a principle of nonstigmatization is it possible to reconcile a condemnation of the official discrimination previously experienced by black Americans, in particular the Jim Crow system struck down in Brown, with a defense of affirmative action. While Brown could be justified either by an absolute ban on certain forms of categorization (for instance, those based on race, regardless of their underlying raison d’être), or because of the intrinsic impermissibility of certain motivations for state action, the affirmative action issue requires acknowledging that distinction and dispelling the remaining ambiguity.55 Dworkin’s preferred solution is simple. It consists in embracing the second of these two options and asserting that the constitutional deficiency of the law under challenge must lie in the nature of the justification it requires.56 Thus, there is no reason why affirmative action should be held unconstitutional. Unlike school segregation, the policy is not predicated on the establishment of an intellectual or moral hierarchy between the different racial groups. The damage that affirmative action inflicts on

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white individuals is markedly different from that experienced by blacks as victims of racial discrimination, because the effects of the policy are narrowly circumscribed and not cumulative, and because far from being understood by the supporters of affirmative action as an intrinsically desirable end, this damage is only the incidental by-product of an action undertaken to promote a social ideal that the “victim” himself may in theory embrace.57 In this case, the allocative process is not entirely permeated by the project of subordinating all members of a racial group; it can be broken down into two analytically distinct steps. First, some applicants belonging to groups targeted by affirmative action benefit from a preference that in practice allows them to obtain a valuable position; consequently, and symmetrically, other individuals outside these groups will have their application rejected due to the decrease in the number of positions available induced by the operation of the first part of the scheme. In other words, the set of potential victims of affirmative action is merely a residual aggregate bringing together individuals whose only common feature is their noninclusion in one of the favored categories, without any negative intent being directed toward them. While no justification devoid of intrinsically unacceptable motivations with regard to the overriding principle of “equal concern and respect” can be put forth in support of the former system of de jure segregation, those individuals disadvantaged by affirmative action are so only as a result of a “rational calculation about the socially most beneficial use of [some] limited resources.”58 The Positive Side of the Argument Once it is acknowledged that there is no right that affirmative action would infringe upon and which would justify rejecting it as a matter of principle, the policy can be considered in a consequentialist and strategic perspective, as a more or less appropriate means of attaining a predefined objective conceived as a public good. Affirmative action would then be judged only according to its actual contribution to the promotion of what may be described as its ultimate goal, namely the deracialization of American society.59 Viewed in this light, it is because of the expressive value inevitably associated with the pattern of distribution of tangible and intangible goods that the disproportionate concentration of blacks among the underprivileged must be reduced through public action. Racial inequality must be fought all the more strongly as its persistent and multidimensional character may well make it seem like an indication (or

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confirmation) of the existence of a status hierarchy. And it is Dworkin’s analysis of the connection between the distribution of the most valuable social positions among racial groups and the permanence of racial categorization itself, as a source of distinct, cumulative, and systematically negative effects for black individuals that one may find particularly enlightening. In this respect, the starting point of his argument is a simple and nearly consensual observation about the importance that “race” still retains as a defining feature of social identity in the United States: American society is currently a racially conscious society; this is the inevitable and evident consequence of a history of slavery, repression and prejudice. Black men and women, boys and girls, are not free to choose for themselves in what roles, or as members of which social groups, others will characterize them. They are black, and no other feature of personality or allegiance or ambition will so thoroughly influence how they will be perceived and treated by others, and the range and character of the lives that will be open to them.60 Since what makes racial categories relevant as vectors of potentially useful information is primarily the way they intersect with economic and occupational categories, improving blacks’ economic and occupational predicament may eventually diminish the reliability of color as a “status indicator.”61 Dworkin thus suggests making a “calculation of strategy,”62 according to which the immediate goal of affirmative action, namely the increase in the number of blacks working in occupations carrying power and prestige, should ultimately bring about a decrease in the degree of racial identification in the United States by reducing the existing correlation between color and social standing: The tiny number of black doctors and other professionals is both a consequence and a continuing cause of American racial consciousness, one link in a long and self-fuelling reaction . . . Professional association between blacks and whites will decrease the degree to which whites think of blacks as a race rather than as people, and thus the degree to which blacks think of themselves that way . . . to the point at which blacks may begin to think of themselves as individuals who can succeed like others through talent and initiative.63 In this light, the task that affirmative action is meant to perform is both crucial and limited in scope. The policy presupposes a framework akin to that of zero-sum-game and is designed only to modify the final

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distribution of some valuable positions among the members of the different racial groups ex post facto (and marginally at that), without undertaking a structural, equalizing transformation of the matrix that determines the benefits attached to such positions. It is precisely from the absence of such a broader strategy of equalization and the permanence of a sizeable discrepancy between the material and immaterial benefits associated with different occupations that affirmative action draws its raison d’être. Because it remains logically subordinate to the persistence of that structural inequality, the policy will always be open to a purportedly radical critique underlining its apparent shallowness and the implicit abandonment of a more ambitious redistributive project that it may be thought to reflect.64 Yet, this renouncement only appears as such if one rejects or ignores the definition of the purpose of affirmative action advanced by Dworkin. For that purpose is only, by equalizing the distribution of some goods (jobs, admissions, public contracts) between whites and blacks considered as racial groups, to indirectly equalize the distribution of another good between the members of these two groups considered as individuals, namely the absence of harm experienced as a result of racial identification or, more precisely, as a result of one’s race being empirically correlated with a given position at the bottom of the economic and occupational hierarchy. The underlying idea is that the relative concentration of blacks in the lower tiers of that hierarchy, a well-known fact confirmed by most Americans’ daily experience, is largely responsible for the perpetuation of negative stereotypes as to their “natural” inability to move beyond menial occupations. These stereotypes are bound to linger as long as their empirical basis remains. Thus, to use a term coined by Erving Goffman, affirmative action would be oriented toward the production of disidentifiers, that is, of “signs that tend[s]—in fact or hope—to break up an otherwise coherent picture but in this case in a positive direction.”65 It would be part of an attempt at racial decategorization by which, through a planned increase of the internal socioeconomic diversity among blacks, that group’s “monolithic separateness”66 would dissolve and it would become impossible to ascribe to its individual components similarities other than the common, constitutive feature of the group.67 As political scientist Etienne Schweisguth has pointed out, “[T]he existence of categories as instruments for reducing the infinite complexity of the world is a prerequisite to the development of human thinking. But the categories that operate as frames through which reality is perceived . . . [and reflect] the way an individual structures her representations about her social environment . . . are not . . . like data arising immediately from the individual’s

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experience.” Since these “frames, which provide primary meanings and generate a kind of naturalness about the world,”69 are themselves constituted through a social and historical process the internal dynamic of which one may hope to rationally grasp, it is not preposterous to consider ways of possibly de-institutionalizing them. Such is the ultimate goal of the “calculation of strategy” from which affirmative action may be thought to proceed, and the final judgment about the policy should be exclusively determined by an assessment of its instrumental effectiveness with respect to that goal.70 Yet, seen in this light, the implementation of affirmative action remains subordinated to two decisions that cannot be viewed as the product of a purely logical and deductive process and whose nature is irreducibly political: to consider the reduction in the degree of racial identification (as a matrix of social disadvantage) in American society as a policy goal; and to identify the criterion by which success in achieving that goal might be assessed, so that the policy may eventually be brought to an end.71 Considering now the predictive and consequentialist dimension of Dworkin’s theory specifically, it appears that the notion of color blindness discussed above may give rise to two separate objections, neither of which, however, proves unanswerable—or so I will argue. The first objection belongs to a category of discursive devices that Albert Hirschman, in his classic study of the “rhetoric of reaction,”72 identified as the jeopardy argument.73 According to that instance of it, just when the notion of color blindness had eventually been made into law through the enactment of the Civil Rights Act of 1964 (and only after a protracted battle), there came affirmative action to shatter this recent and hard-won victory, whose irreversibility was wrongly taken for granted.74 However beneficial the policy might be otherwise, such benefits could in no way justify so great a sacrifice. In relation to the value of the achievement that affirmative action would thus jeopardize, the cost of the programs could only seem excessive. Yet, the problem here lies in the unacknowledged semantic shift that leads to viewing as an achievement the color blindness that one purports to celebrate. For denouncing the “departure” that affirmative action would introduce in relation to current antidiscrimination law— itself considered as instantiating color blindness—is made vulnerable by the inaccuracy of that characterization: the Civil Rights Act is just as color-conscious as affirmative action, in that the prohibition that it enacts does acknowledge the social relevance of race. In a truly colorblind society, there would be no reason for such a law to exist. In this respect, there is an essential similarity between that law and affirmative

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action programs: in both cases color blindness as an actual end state only appears as an ideal to strive for, a regulative horizon, not an accurate description of current reality. In particular, as long as the antidiscrimination statutory injunction does not aim only at behaviors motivated by some degree of hostility toward members of a given racial group or rooted in irrational prejudice about them, but also extends to statistical discrimination as previously defined,75 the analytical distinction between the prohibition that it enacts and affirmative action is ultimately a very thin one: just like the latter, the former does stand as an exception of some kind, because it applies only to a small subset of all functional, potentially efficient generalizations. In a truly deracialized social environment, one would have a hard time thinking of a reason why it should be illegal to consider skin color—just as any other superficial feature of individuals—as a proxy for another, contextually relevant characteristic, should the statistical correlation between the two variables, rightly or wrongly, be deemed high enough by those invested with decision-making responsibilities. Conversely, the obligation to maintain the artificial attitude of refraining from any decision based on a characteristic that nevertheless could serve as a basis for fairly efficient generalizations in a number of cases—an obligation imposed by the prohibition of statistical discrimination and that can only be observed deliberately —is ontologically incompatible with actual color blindness. The latter thus cannot be the dividing line between the presumably consensual mainstream antidiscrimination law and the “jeopardy” instantiated by affirmative action. Besides, in addition to the Civil Rights Act, one can find in the Supreme Court case law on the Equal Protection Clause other elements confirming the legal impermissibility of decisions that nevertheless comply with the principle of color blindness strictly conceived. The 1982 Palmore v. Sidoti ruling is a case in point.76 In that case, the district court judge initially decided to award custody of a child of divorced parents to the father instead of the mother, who had remarried to a black man, on the ground that should he settle for the mother, the child would “certainly” suffer from a “social stigmatization” that children raised by interracial couples simply could not avoid.77 Yet, that decision was overturned by a unanimous Supreme Court. Without ever challenging the accuracy of the empirical assumption underlying the initial judgment, the Court simply asserted that third-party prejudices and their harmful effects could not be sanctioned by jurisdictional authorities: “Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”78 However, the Florida court decision was actually

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“color-blind,” insofar as the judge had decided the matter according to the criterion normally used in similar cases with no racial dimension, namely the degree of psychological harm that the child was likely to experience and that one should attempt to minimize. By reversing that decision, the Supreme Court thus implicitly suggested that some kind of awareness of race inherent in the choice of not considering this factor on a par with other sources of potential harm was not only authorized, but indeed required by the Equal Protection Clause of the Fourteenth Amendment. Considering now the second kind of objections that can be raised against the positive dimension of Dworkin’s argument in the name of color blindness, one may conceive of the latter not as an already achieved social condition but as an immediately applicable pragmatic rule which, if implemented across the board, in the long run would remain the most prudent policy, given the predictable consequences of the different options available as far as the actual deracialization of American society is concerned, whereas affirmative action, on the other hand, would only make that goal more elusive.79 In this somehow paradoxical perspective, it would be preferable, in the aggregate and from a utilitarian point of view, to stick to the simplest option of banning the use of racial classifications by state authorities under any circumstances, rather than to subordinate each decision made in this respect to a separate calculation of utility. Thus, the enactment of a rule of color blindness would be justified not by its intrinsically moral nature, but as a prescription derived from the implementation of the utilitarian principle to an extended time frame. Given, on the one hand, the dire consequences that could result from potential errors and abuses in this domain, and on the other hand, the likelihood of their occurrence (which one assumes to be high enough), it would be wise to ward off this danger once and for all by putting racial classifications out of reach of both legislators and judges. According to the proponents of this view, it is the knowledge of the harm that these classifications have caused in the past and the desire to prevent the reoccurrence of such harm that should lead one to steer clear of this Pandora’s box. As Justice O’Connor stated in her dissent in Metro Broadcasting, Inc. v. Federal Communications Commission, “the Court’s emphasis on ‘benign racial classifications’ suggests confidence in its ability to distinguish good from harmful governmental uses of racial criteria. History should teach greater humility.”80 It is thus the memory of past wrongs that may bring one to consider the enactment of a rule of color blindness as “the safest course.”81 Such a choice would prove all the more

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necessary as there is now a trend toward the “culturalization” of ethnoracial identities, which might justify subjecting them to a neutrality principle inspired from the management of religious pluralism. This paradigmatic transposition has been advocated by economist Jennifer Roback, for instance, who calls for a “separation of Race and State” viewed as a counterpart to the Non-Establishment Clause of the First Amendment,82 and by historian David Hollinger, who argues that given the increased propensity of race to work as a locus of cultural affirmation, state authorities ought to embrace the neutrality most likely to help prevent the occurrence of civil disorders in the long run.83 The diminishing saliency of religion and the growing saliency of “race” emphasized by macrohistoric studies of the main cleavages within American society and their successive shifts84 should thus entail a relegation of race and feelings of racial membership to the private sphere, if only for prudential reasons. Also, the wording of Justice O’Connor’s comment quoted above brings into light another aspect of this critique of the consequentialist argument in favor of affirmative action that targets the disproportionate ambition evinced by its consequentialist dimension itself. Regardless of the specific content of the predictions made in this case, the lack of “humility” that she objects to mostly lies in the very claim to predict the consequences of implementing a complex policy scheme such as affirmative action. In this perspective, which is close to the anticonstructivism of Hayek as well as with some of Michael Oakeshott’s admonitions, the fallibility of consequentialist arguments is simply a function of the “limitations of rationality,”85 and the essential imperfection of human reasoning prevents one from making a sufficiently well-grounded judgment about the structural effects of any large-scale social reform.86 Affirmative action as conceived by Dworkin would thus partake of a presumptuous “rationalism,” on a par with all other master plans to transform society in a predefined way.87 Yet, the utilitarian justification for enacting the rule that state authorities must never take into account racial classifications is not entirely persuasive, for it does not provide a clear enough answer to the two following questions: if the effects of these classifications are predictable enough to give rise to an overall assessment of the risk induced by occasionally allowing them, why not, then, directly include the individual estimates which, taken altogether, account for that global assessment into each of the separate utility calculations possibly made about the different decisions to allow them or not, considered on a case-by-case basis? If, on the other hand, these effects are just impossible to anticipate and assess precisely enough, how can the fear that they might arise justify a prohibition which will itself

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produce some momentous effects? If there is no way to probabilistically appraise the more or less desirable consequences of affirmative action, the fact of invoking prudential considerations against it, without suggesting an alternative course of action, actually implies a positive assessment of the status quo in relation to which the “risk” anticipated would come into shape, a status quo then perceived not only as tolerable but as positively valuable, and therefore intrinsically worth protecting from the mere uncertainty associated with utilitarian calculations. Ultimately, this positive assessment and the noninterventionist stance that it entails proceed from a political choice which remains subject to controversy. As Dworkin rightly points out, it may . . . be said that . . . if racial classifications have been and may still be used for malign purposes, then everyone has a flat right that racial classifications not be used at all. This is the familiar appeal to the lazy virtue of simplicity. It supposes that if a line is difficult to draw, or might be difficult to administer if drawn, then there is wisdom in not making the attempt to draw it. There may be cases in which that is wise, but those would be cases in which nothing of great value would as a consequence be lost.88 Assuming that the saliency of racial categories, which affirmative action is meant to reduce in the long run, does stand as a specific source of disadvantage for all black individuals,89 since the noneradication of that disadvantage may then be viewed as the loss of something “of great value,” the rule of color blindness ultimately cannot be derived either from the principle of equality itself (since in this respect the only right that each person has is the right to be treated as an equal, which does not necessarily rule out all race-based differential treatments), or from truly persuasive, strictly utilitarian considerations.90 Thus, a case can be made that the objection raised against affirmative action on account of its alleged incompatibility with the presumably consensual value that a deracialized social universe would embody is actually based on the unconscious or deliberately fostered conflation between color blindness as a description of the current state of American society (whose inadequacy is established if only by the existence of an antidiscrimination legislation prohibiting statistical discrimination) and color blindness as a description of the ideal state that one hopes to reach—and that affirmative action might be instrumental in promoting in the long run. Yet, assessing its effectiveness in this respect, that is, its capacity to truly decrease the degree of racial identification in the United States, requires an empirical analysis.

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The two main assumptions underlying the positive dimension of Dworkin’s argument are also empirical in nature. Once the issue of the legitimacy of affirmative action with respect to the constitutionally protected rights of individuals has been dealt with, this author’s position finally rests on a sociological and historical judgment that is both plausible and controversial, yet remains partly implicit in his analysis. That judgment consists in acknowledging, on the one hand, the uniqueness of the past experience of black Americans, which may help justify taking specific, exceptional steps in their favor; on the other hand, the current persistence of a special kind of disadvantage experienced by them—a disadvantage that cannot be reduced either to the externalization of racism as an ideology or to an accumulation of strictly material handicaps, and that affirmative action is meant to eradicate in the long run.91 To complement Dworkin’s reasoning on this important point, the existence as well as the formative process of this specific kind of disadvantage must now be brought to light.92 The Sociological Foundations of Dworkin’s Argument: Racial Identification as a Matrix of Disadvantage Before getting into the heart of the matter, I shall first define how the expression “racial identification” will be used here, so as to dispel any possible ambiguity. “Race” in American Public Discourse: An Implicit Semantic Shift As a general matter, it may be unwise “to infer from the permanence of a word . . . the permanence of the meanings attached to it.”93 Accordingly, in most cases, the term “race” as it is now being used in the United States is no longer meant to identify a generally accepted anthropological classification of human beings into genetically distinct subclasses. Instead, it refers elliptically to groups formerly victimized by some widespread discriminatory practices on the basis of a now disqualified racism of a pseudoscientific kind,94 the effects of which remain perceptible nonetheless. Whereas the word “race” previously denoted some collective features presumed to be essential, immutable, and endowed with the power to shape behavior, today it refers almost antithetically to identities produced by social conducts that are assumed to be modifiable and that one indeed attempts to modify. In short, the only legitimate definition of “race” now tends to be one that makes it the basis of unequal treatments viewed as illegitimate

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and ideally bound to disappear. Yet, because language, as a “system” providing the “common objectifications of everyday life,”95 does have a legitimacy-enhancing power, one may well fear that the implicit nature of this semantic shift—and the ambiguity thus maintained between race as a primordial category inscribed within a biologically minded conception of social life and race as a collective representation and political/ ideological construct—will only muddle the analysis further.96 The notion of racial identification is meant to deal with that difficulty. The idea here is simply to translate into words the analytical distinction mentioned above, so as to make as clear as possible that acknowledging and attempting to remedy the injustice inherent in denying some individuals opportunities for personal fulfillment as a result of the social value commonly ascribed to their most salient phenotypical features in no way implies considering “race” as a natural fact that would be intrinsically relevant from a public policy perspective.97 This choice of terminology thus aims at underlining the essentially relational nature of racial identities, the effects of which are produced only through the changing meaning that social agents actually assign to them. Beyond the Reduction of Interindividual Economic Inequalities To better grasp the specific nature of the handicap that affirmative action is meant to reduce, one possible, oversimplified definition of it must first be discussed and dismissed. From Dworkin’s perspective, affirmative action cannot be reduced to a standard redistributive policy whose goal would be to equalize the distribution of material goods to the benefit of the most disadvantaged, taking into account the statistical overrepresentation of blacks among them. Race, far from being considered as a proxy for economic disadvantage that one may want to use for the sake of administrative convenience, is viewed as a factor of additional disadvantage. Accordingly, those objections that point out the lack of immediately perceptible effects of affirmative action on the most disadvantaged blacks and wax indignant that one should “giv[e] a university admissions preference to the government official’s son who attends a private school in Washington, D.C., just because he belongs to an underrepresented group, over the daughter of an Appalachian coal miner”98 simply miss the point. They ignore the possibility that there might be a residual disadvantage linked with race and affecting all black individuals to a certain extent, a disadvantage which cannot entirely be reduced to its economic manifestations and thus might deserve a special treatment of some kind.99

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As far as the specification of this disadvantage is concerned, some ideas developed by economist Glenn Loury independently from Dworkin’s argument offer a promising starting point.100 According to Loury, the reason why the permanence of a substantial gap between the material resources possessed by members of the two racial groups considered in the aggregate is indeed a source for concern over and above the interindividual inequalities that exist within each group is because this gap indicates a broader disparity in the social capital held by whites and blacks, such a disparity being itself linked to cross-generational phenomena of informal segregation occurring outside the purview of antidiscrimination law.101 For instance, the racial segmentation of associative memberships outside the economic sphere—partly the outcome of the perpetuation of de facto residential segregation102—prevents blacks from participating in potentially beneficial exchanges. In the field of employment in particular, some of the assets that allow employees and job applicants to reach a higher level of qualification can only be obtained through interactions that take shape within relational networks, access to which remains partly determined by race.103 Yet, any attempt by state authorities to equalize the distribution of this specific resource would come up against the principle of freedom of association and the requirement to preserve a private space that remains out of reach of government regulation. At the same time, since the unequal distribution of the most valuable jobs between the two racial groups reflects the permanence of a specific handicap suffered by the members of one of them, not taking that handicap into consideration amounts to disregarding some of the data necessary to grasp the full scope of interindividual inequalities within the American population. Other useful elements for comprehending the ultimate goal that affirmative action may be called upon to promote are also provided by those scholars who very early on turned their attention to the “vicious circle” involved in the “Negro problem.” Aside from Tocqueville, once again,104 the Swedish economist Gunnar Myrdal, the author of An American Dilemma, is a case in point.105 According to Myrdal, it is precisely because all the constitutive elements of this dilemma were so deeply interwoven that one could reasonably hope that altering just one of them would provoke “consecutive waves of back-effects,” so that the impact of the initial impulse would be greatly enhanced, leading to the formation of a “virtuous circle” of some kind:106 White prejudice and discrimination keep the Negro low in standards of living, health, education, manners and morals. This, in turn,

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gives support to white prejudice. White prejudice and Negro standards thus mutually “cause” each other . . . . Such a static “accommodation,” however, is entirely accidental. If either of the factors changes, this will cause a change in the other factor, too, and start a process of interaction where the change in one factor will continuously be supported by the reaction of the other factor. The whole system will be moving in the direction of the primary change, but much further. This is what we mean by cumulative causation.107 Within the frame of this social engineering approach, affirmative action may be conceived as a tool for modifying the second of the above-mentioned “factors,” that is, blacks’ position in the hierarchy of income and occupation, with the idea that such an improvement should trigger a chain reaction that would eventually produce “a cumulative effect upon [their] general status.”108

Evidence of the Permanence of a Specific Disadvantage Related to Racial Identification Before exploring more in depth the processes by which this disadvantage emerges and tends to persist over time, it is worth reviewing some factual data reflecting its continuing existence.109 First, the size of the economic and educational gap between blacks and (non-Hispanic) whites, although smaller than in the past, is still quite significant. For instance, in 2003, despite the existence of affirmative action programs, only 17.3 percent of blacks had attended four years of college or more, compared to 30 percent of whites,110 and among all U.S. citizens who received doctorates in the arts and sciences only 4.3 percent were black.111 In 2005, the average black household income (30,858 dollars) amounted to 61 percent of the white household income (50,784 dollars).112 The average gap between the amounts of assets held by the households of each racial group is much larger still: partly as a result of past discrimination in housing ownership targeting blacks and involving precisely the properties whose value would later undergo the greatest increase, the ratio is approximately one to ten.113 Furthermore, in 2005, whereas 8.3 percent of whites were below the poverty line, the proportion was 24.9 percent for blacks.114 That same year, 9.4 percent of blacks were unemployed, compared to 4 percent of whites.115 In 2003, life expectancy was more than five years lower for blacks than for whites (72.7 years compared to 78 years).116 In 2004, out of 100,000 white

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individuals, the number of homicide victims was 3; out of 100,000 black individuals, it was 20.117 Last but not least, in 1998 blacks made up approximately 12 percent of the U.S. population, but 49 percent of its prison population.118 True, the percentage of blacks among employees in management positions increased twofold from 1960 to 1980, from 3 percent to 6 percent, partly thanks to affirmative action.119 Yet, blacks remain dramatically underrepresented in a number of relatively prestigious professions, such as lawyers (3.3 percent), engineers (3.7 percent), doctors (4.2 percent) and university professors (5 percent).120 In contrast, they are markedly overrepresented in menial jobs, and in jobs, such as social work, that are most vulnerable to cuts in public spending.121 Moreover, even in the private sector, blacks are often concentrated in fields such as public relations and human resource management that are usually the first targets for layoffs. Their rise in economic and occupational status thus remains both limited and precarious. Obviously, though, this condensed list of some of the signs that suggest the persistence of a multidimensional disadvantage experienced by blacks does not predetermine the type(s) of public intervention that might most effectively help to eradicate it. In particular, it seems clear that the selection of appropriate measures partly depends on the role played by (direct) discrimination in perpetuating that disadvantage. Within the black population itself, the notion that this role remains overwhelming is widespread. According to the startling findings of a series of polls taken in 1990 among black residents of New York City, 10 percent of the interviewees considered true and 19 percent considered plausible that the AIDS virus had been artificially produced in a laboratory in order to contaminate blacks; 32 percent and 45 percent of them also believed it to be true or plausible that the American government had deliberately ordered a number of investigations of black elected officials with a view to discrediting all of them.122 Moreover, drawing on a much larger body of data, Jennifer Hochschild has shown that the propensity of black individuals to view racial discrimination as an all-powerful explanatory factor was actually proportional to their rise in the occupational and economic hierarchy.123 Yet, the mere fact that a substantial fraction of the members of a given group feel victimized is not enough to establish the existence of an injustice that state authorities ought to remedy. One must point to objective criteria by which to assess the validity of that impression.124 As a matter of fact, however, there is no dearth of empirical evidence as to the persistence—although to an extent much smaller than before

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the enactment of the antidiscrimination laws of the 1960s—of specific penalties imposed upon black individuals within a number of settings. Whether it involves job applications,125 job assignments,126 purchasing or renting some housing product,127 securing mortgages,128 interactions in public places,129 pretrial release decisions and the amount of bail necessary to obtain them,130 the degree of stigma associated with the fact of having a criminal record that operates as an impediment to getting a job,131 access to kidney transplantation,132 taxicab tipping,133 or the ability to buy a new or used car at market prices (or even a baseball card),134 the existing surveys, which attempt to control for variables other than race by sending “pairs” made up of two individuals whose profiles are strictly identical except for skin color, do confirm the persistence of unequal treatment between whites and blacks.135 In some areas, this inequality is particularly dramatic. The criminal justice system is a case in point.136 Consider, for instance, the McCleskey v. Kemp decision (1987), in which the Supreme Court rejected the appeal of a black prisoner, Warren McCleskey, who argued that his death sentence pronounced by a Georgia court ought to be struck down under the Equal Protection Clause, on the basis of an empirical study showing that in that state people convicted of homicide were four times more likely to be executed when their victim was white—as in the case under consideration— than when she was black.137 Without challenging the accuracy of the facts reported in that study and without considering the issue of (un)equal protection against (private) violence that was arguably involved,138 the Court justified its decision by arguing that the defendant had not established discriminatory intent on the part of the Georgia authorities in his particular case, as required under Washington v. Davis.139 Yet, beyond this strictly legal argument, the justices seemed mainly concerned about the upheaval that would result from acknowledging the existence of some widespread racial discrimination in the criminal justice system, since that acknowledgment might lead them toward a slippery slope: [I]f we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.140 Paradoxically enough, it is the Court’s suspicion that it might be brought to uncover some even more extensive discrimination that makes it choose not to carry the investigation any further.141 Finally, the existence of a specific handicap induced by racial identification itself is borne out by the findings of an ingenious comparative study

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of the U.S. private adoption “market” conducted by sociologist Sherrie Kossoudji.142 This example is illuminating in that it provides a reliable means of dissociating the impact of racial identification from the negative effects of a hypothetical and presumably dysfunctional black “culture”: such putative effects can more safely be considered as negligible within the group of children aged 0 to 5 included in the sample than in many other settings. Because those children display only few differentiating features other than race, it should be possible to assess precisely enough the influence exerted by that single factor on the choices made by (would-be) adoptive parents. And as a matter of fact, even though blacks are strongly overrepresented among children available for adoption (they made up 33.9 percent of the total in 1983), the data gathered since 1969 indicate that their adoption rate remains significantly below that of whites, but also below the adoption rate of all other groups defined on an ethnoracial basis. It is thus blackness itself—beyond the general principle of transracial adoption—that provokes the greatest reluctance, as confirmed by surveys conducted among white adoptive parents of Native American or Hispanic children which indicate that 80 percent of them would never have been willing to adopt a black child. Whether that discrepancy should mainly be ascribed to racism on the part of the respondents or to their fear of the disruptions that third-party prejudice might cause in their family life,143 race remains perceived as an insuperable obstacle.144 Although it might be unwise to draw general conclusions from a study devoted to such a particular domain of individual choice, it is precisely this kind of disqualifying identifications that affirmative action is designed to eradicate in the long run. The Dynamics of Racial Disadvantage145 As Pierre-André Taguieff has pointed out, racism has several interrelated dimensions. It consists in “attitudes, i.e. unarticulated opinions and beliefs . . .; in behaviors—individual or collective—and in institutional or noninstitutional practices . . .; and in ideologies, . . . that is, more or less tightly structured systems of representations of interests and values.”146 Any argument in favor of affirmative action must therefore take into account the apparent decline of the ideological dimension of racism in the United States, as indicated by the findings of opinion polls compared over a period of several decades. Thus, whereas in 1942 the statement according to which blacks were naturally less intelligent than whites met with the approval of 58 percent of white respondents, only 6 percent of them still voiced that opinion in 1986.147 Likewise, although in the 1940s over 60 percent of whites were

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in favor of maintaining segregation in public schools and 55 percent were opposed to the enactment of a federal statute banning discrimination in employment, in the 1980s, that percentage had dropped to 10 and less than 1 respectively.148 Even regarding the highly sensitive issue of interracial marriages,149 which remains one of the focal points crystallizing white resistance to the trend toward racial equality, there has been some substantial progress: in 1985, 61 percent of whites expressed no disapproval, as against only 25 percent in 1972.150 Therefore, any persuasive defense of affirmative action must incorporate an acknowledgment of the fact that some discriminatory behaviors persist even though their ideological basis has eroded. Since those behaviors are now arguably independent in part of a subjective belief in the moral inferiority of their targets, they may well be better understood as the outcome of calculations of some kind than as the external manifestation of the values embraced by those who discriminate.151 And to understand the nature of such calculations, one needs to consider the economic theories of discrimination, of which Gary Becker’s analysis––and his conclusion that racial discrimination is bound to disappear in a competitive free market economy––is rightly considered as the main starting point. Becker’s basic idea is fairly simple. Insofar as a company whose recruitment practices are not geared toward the goal of maximizing productivity would be at a disadvantage in relation to its competitors, and assuming the race of job applicants is indeed one of these considerations that are typically irrelevant to the overriding requirement of profit-seeking, antidiscrimination law—and, needless to say, affirmative action—is unnecessary, because the threat of competition alone, in the long run, should be enough to deter those employers who discriminate from indulging such a costly taste for the racial homogeneity of their workforce.152 If blacks and whites have approximately the same qualifications but employers systematically discriminate against blacks nonetheless, a gap between the wages paid to the members of each group is bound to appear since, by definition, all other things being equal, companies would be willing to increase the wages paid to white applicants rather than agree to hire blacks. If they did, the moment would eventually come when new entrepreneurs, drawn by the goldmine of this unused black labor force willing to work for relatively low wages, would enter the market, and hire those unemployed black applicants. One the one hand, this would help reduce the wage gap; one the other hand, it would eventually drive the employers who kept on discriminating into bankruptcy. Thus, the dynamic of competition would gradually erode the institutionalized hierarchy between white and black employees.153

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Yet, this optimistic account may well be challenged. First, the more the demand for labor exceeds the supply, the lower the cost of discrimination for the employer. Second and most importantly, the whole reasoning rests on the assumption that discrimination is economically irrational, which is not necessarily true. Imagine a situation in which the employer is faced with an obviously well-qualified black applicant, yet believes that hiring her carries a significant risk given the strength of racial prejudice among his potential customers, who may decide to take their business elsewhere simply to avoid contact with any black employee. As long as the probability that this kind of response would take place is not obviously overestimated, discrimination would then be justifiable in relation to the employer’s “natural” goal as defined by economic theory.154 Regardless of what the employer thinks of the social norm excluding members of a stigmatized minority, prudential considerations may lead him to comply with it. Insofar as the cost of noncompliance seems too high, or too unpredictable, a discriminatory equilibrium may then prevail, that only a statutory prohibition on race-based discrimination applicable across the board to all competing agents may be able to upset.155 This is just one among many examples of a specific kind of discriminatory behaviors known as “statistical discrimination.”156 This notion, that was initially introduced by economists such as Edmund Phelps157 and Kenneth Arrow,158 refers to any decision working against the members of a given group that is mainly motivated not by animus toward them or by the discriminating party’s having embraced an ideology justifying their oppression, but by an empirically ascertainable statistical correlation between membership in the group and a feature objectively detrimental to the attainment of a goal of the decision maker commonly acknowledged as legitimate. In particular, given that the information available to individuals is always imperfect and that increasing that information is always costly, race may sometimes appear as a functional substitute allowing employers to minimize such information costs, in which case it may be contextually “rational” for them to take it into account.159 As Bruce Ackerman puts it, American society remains characterized by “a transactional system where whites use race as a proxy for individualized data on personal abilities.”160 This does not imply, however, that inferences based on racial identification, usually a nearly instantaneous and cost-free cognitive operation, are indeed more reliable than those resulting from the use of any other mediating classification; what matters is that the individual decision maker involved believes them to be so.

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As economist Glenn Loury has aptly shown, the problem is that statistical discrimination helps perpetuate the empirical predicament from which it stems, as a kind of self-fulfilling prophecy.162 Insofar as the black individuals vulnerable to it can then be discouraged from making the efforts necessary to obtain the qualifications that would help invalidate the negative stereotypes about them, that discrimination tends to consolidate the gap in qualifications between blacks and whites, which works as its own justification. It is this cyclical mechanism through which negative expectations toward African Americans get reinforced that affirmative action is meant to counter.163 That such expectations, “the aggregation of which is a major component of social life,”164 are indeed widespread and produce some powerful effects is a well-known fact. Consider the example of law and order. However unpleasant the idea, this is an area in which skin color may carry some valuable information, because of the statistical overrepresentation of blacks in the population of lawbreakers: in 1997, for instance, whereas blacks were 12 percent of the American population, they made up 38 percent of the people arrested for armed robbery and 59 percent of those arrested for theft.165 Even if one takes into account the distortion induced by the fact that police officers are more prone to make an arrest when the suspect is identified as “black,” the disproportion is still impressive.166 It is thus hardly surprising that people whose occupation makes them particularly vulnerable to this kind of danger have a tendency to systematically integrate race as a factor in their risk assessment. At any rate, this is what stands out in the findings of a 1994 survey commissioned by the Washington Lawyers’ Committee for Civil Rights, according to which about one-third of the taxi drivers in Washington, DC do not stop when hailed by a young-looking black man, regardless of their own race.167 As for the police’s use of racial profiling, that is, the practice of focusing surveillance on blacks and Hispanics, given the correlation observable in certain urban areas between ethnoracial identity and the probability of having broken the law one way or another, there is every reason to believe that it is widespread.168 This same logic of discrimination as a function of risk aversion is arguably present in many contexts other than law enforcement. As far as employment is concerned, a case can be made that race is often viewed as a proxy for some of the constitutive elements of a job applicant’s productivity (showing up on time, a willingness to work hard, etc.) which are difficult to assess ex ante, and that, as a general matter, the role played by statistical discrimination within the overall discrimination faced by blacks

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in this area is increasing.169 In particular, the conjunction of color and of living in a stigmatized neighborhood seems to be the most powerful hindrance, insofar as it is perceived by those in charge of the hiring process as indicating relevant differences between applicants beyond what formal qualifications might reveal. Thus, according to one employer interviewed by sociologist William Julius Wilson and his colleagues, blacks whose address connects them with a notorious ghetto could be subject to pressures that would eventually prevent them from doing their job properly, given the nature of their everyday environment: As a manager, I know that. And I’m not going to hire him because of that. I’m not discriminating against him because he’s black, I’m discriminating against him because he has a problem that he’s going to bring to me. Now the fact that he’s black and the people around him are black is only coincidental.170 Yet, without even questioning the sincerity of this employer’s description of the motives underlying the informal discrimination that he admittedly engages in, that discrimination is surely unfair toward the members of the stigmatized group who are willing and able to resist such pressures and/or who do not display the features that are stereotypically associated with the group. Those individuals are in fact penalized only because they have in common with other people whose prior performance proved deficient a characteristic intrinsically devoid of any determinative value as to their own level of skill. Yet, even if employers were both aware of the cumulative effects of statistical discrimination and willing to eradicate that practice, they could not act effectively at an individual level. To solve this typical dilemma of collective action,171 government intervention is required, of which affirmative action is one of the possible instruments. Of course, one may object that the very existence of the 1964 Civil Rights Act should be sufficient to ensure that the effects and side effects of discrimination “enter the utility function of the actor” who discriminates.172 As a matter of fact, this law draws no distinction between statistical discrimination and discrimination based on prejudice: the former is as stringently prohibited as the latter. Yet, affirmative action can still be assigned the more specific task of approximately compensating for the consequences of two distinct phenomena: first, violations of that prohibition of statistical discrimination; second, the prevalence of statistical discrimination in domains outside of the purview of the Civil Rights Act yet determinative as far as the distribution of the most valuable social

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positions between racial groups is concerned. Thus, the policy would have to be enforced for as long as there remain some discriminatory practices rooted in negative stereotypes the instrumental value of which one may reasonably hope to reduce.173

The Psychological Underpinnings and Individual-Centered Dimension of the Deracialization Argument According to social psychology studies,174 one of the main factors accounting for the saliency of a given individual feature—and the possibility of its being converted into a basis for categorization—is the fact that this feature is located at the intersection of several sets of distinctions (ethnoracial, political, religious, occupational, etc.) and may thus work as a multidimensional reference point in various contexts of interaction, as “an identifying trait of potentially universal relevance . . . that tends to be effective in all social spheres.”175 In this respect, the argument for affirmative action defended above is ultimately grounded on the assumption that the enduring relevance of race largely stems from the real informational value that skin color still retains in contemporary America, that value being itself derived from an empirically ascertainable inequality in the distribution of social goods between blacks and whites. Thus, eradicating the stereotypes that associate blackness with the more or less dysfunctional type of behavior to be expected from members of a group for whom equality of opportunity remains so imperfectly realized will require more than the enactment of antidiscrimination laws. These stereotypes and their cumulative effects will persist as long as their inadequacy as a source of practical guidance for moving around in the American social environment has not been exposed. Affirmative action, by lessening the correlation between race and occupational status, might help reduce the value of such stereotypes. Its goal would be to provoke a decrease in the number of instances where race would rightly appear as a suitable indicator that self-interested agents would be well advised to take into account and where their doing so paves the way for a whole range of individual decisions by which black Americans are negatively affected. Only in this way may one be able to achieve a color-blind society. Also, affirmative action ultimately would remain compatible with the individual-centered dimension of the liberal conception of equality, since the policy’s long-term objective would be the elimination of those negative inferences which, while being primarily grounded on the existence

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of a correlation between social status and membership in a specific racial group, are liable to inflict (more or less serious) penalties on all black individuals. Paying attention to inequalities in the distribution of social goods between blacks and whites does not necessarily lead to considering racial groups as subjects in matters of distributive justice. The only domain of concern ought to be the extent of the disadvantage suffered by those individuals identified as belonging to a stigmatized group, with race-based affirmative action being designed to suppress the portion of that disadvantage for which racial identification is still responsible. In short, the moral importance of the group’s “welfare” depends exclusively on the impact of group membership on black individuals.176 The fate of the group—its overall position within the economic and social hierarchy— matters only insofar as it shapes the subjective identity of its members and the set of options available to them. As the Supreme Court itself acknowledged, in an admittedly isolated First Amendment case unrelated to affirmative action in which it confirmed the constitutional admissibility of a state law that made it a crime to utter defamatory statements aimed at an explicitly identified class of people, a man’s job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved.177 Now, of course, not all groups are of this kind. To take but one example, in the United States, while poverty surely curtails an individual’s life prospects to a considerable extent, the matrix of that disadvantage lies in the very fact of being poor, not in the fact of being perceived as belonging to the group of “the poor.” In contrast, hardly anyone would dispute that membership in the black minority remains a particularly powerful focus of internal and external identification in American society: while, to some extent, “being white . . . means not having to think about it,”178 black people’s “individuality is mediated through their understanding of the collective representations of blacks.”179 As legal scholar Owen Fiss observes in characteristically eloquent terms, Blacks are viewed as a group; they view themselves as a group; their identity is in large part determined by membership in the group; their

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social status is linked to the status of the group; and much of our action, institutional and personal, is based on these perspectives.”180 Insofar as affirmative action would succeed in eradicating the negative stereotypes attached to that group membership, it should prove all the more beneficial for all members of the group considered as individuals as their social experience as individuals is actually determined by the fact of being identified to the group. The tangible benefits that affirmative action distributes to a fraction of them would thus have a multiplier effect, since the ensuing overall enhancement of the group’s status would result in fewer restrictions on black individuals’ prospects for selffulfillment specifically induced by their perceived group membership. As far as they are concerned, the improvement brought about by affirmative action may thus be described as a collective good.181 As for the timeframe involved, the policy should arguably be carried on until race, considered apart from any other potential factor of disadvantage, has entirely lost its predictive value as to the distribution of social goods in American society. Far from requiring a belief in a conception of distributive justice under which racial groups themselves would be considered as subjects or rights and/or entitlements, affirmative action aims at transforming the social representations of “race” so as to help individuals overcome the barriers set by ascriptive identities of this kind.

Conclusion: The Selection of the Reference Groups as a Matter of Political Judgment Within the framework of the consequentialist and strategic conception of affirmative action suggested by Ronald Dworkin and that I have attempted to elaborate on,182 what are we to make of the often-heard argument that accepting affirmative action for any minority would inevitably lead to yielding to all the claims for proportional representation that a virtually unlimited number of groups, from the many “ethnic” groups of European stock to “minorities” defined by the most unlikely criteria like “people with blue eyes and red hair,” would then feel entitled to advance ?183 Since affirmative action in favor of blacks would unavoidably appear as a precedent, would it not be wiser, instead of complacently embracing the illusion of being able to restrict the scope of the policy at will, to abstain from opening such a can of worms?184

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This is an example of a standard argumentative strategy according to which some initiative is attacked by being presented as a fatal step onto a “slippery slope” leading straight to disaster. Generally speaking, the distinctive feature of such “slippery-slope arguments” is their claim that the decision at issue will naturally lead to other decisions whose unwanted character remains undisputed both among defenders and opponents of the first one. One may underline either the evil nature of the predicament lying at the bottom of the slope, or the element of arbitrariness involved in breaking out from such a perverse cycle before reaching that dreaded predicament (assuming that option is still available), or both.185 Obviously, for the argument to be valid, the claim that the risk of such a chain of negative side effects is actually high enough to justify preserving the status quo must be plausible. In the case of affirmative action, given the increasing ethnoracial diversity of the American population and the history of the policy itself, which now benefits many groups other than blacks, that condition is clearly met. Yet, this does not mean that there is no persuasive reason not to accommodate such new demands. Although many critics of affirmative action programs are fond of denouncing the absurdity of the ultimate goal of proportional representation in all positions of power and prestige for each and every “group” that they see looming ahead, the problem of open-endedness can be solved by acknowledging that the policy inevitably relies on a historical, sociological, and political judgment as to which reference groups ought not to be overrepresented at the bottom of the economic and occupational hierarchy in order to avoid the selfperpetuation of morally unacceptable, structural inequalities. For all “groups” are not of a similar kind.186 While it is true that every individual belongs to each of the countless “groups” potentially defined according to the possession of any one of her multiple attributes and that any word used to describe the individual features of someone includes her into the class of those having similar features, every class is not a social group, and the potential of a class for becoming a social group cannot be ascertained in abstracto. It is thus necessary to draw an ideal-typical distinction between different kinds of “groups.” First, there are statistical aggregates, in which case the distinctive feature of the group’s “members” can be defined on a random basis, and will be considered artificial by insiders and outsiders alike. The “group” of “people with blue eyes and red hair” is a case in point. Other groups are associations of an organizational kind set up to promote the interests or ideas shared by their members (political parties, unions, etc.). Finally, a third

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category of groups—the only one that has anything to do with affirmative action—is the set of ascriptive, status groups whose existence, far from being the product of a foundation of any kind, remains largely independent from the will of their individual members, and whose impact on their social experience and subjective identity is usually the strongest. True, the identification of the “group of status groups” is bound to remain controversial. The uniqueness of the multidimensional and selfperpetuating disadvantage experienced by blacks in the United States is not something everybody will agree on. There is a risk that policies of preferential treatment will proliferate and extend benefits to groups that do not have any legitimate claim for them. What is more, the problem cannot be dealt with by enacting a generally applicable rule incorporating a limited set of identification criteria for selecting groups that ought to be considered eligible for affirmative action. In this respect, it is impossible not to rely on an irreducibly political judgment.

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PART

2

Interpreting Legitimization Strategies for Affirmative Action

Introduction The second part of this book is made of three distinct yet interrelated arguments. In chapter four, I shall argue that the consequentialist and strategic justification for affirmative action previously developed on the basis of Dworkin’s reasoning has implications that make it particularly risky for supporters of the policy in general and judges in particular to state that justification publicly, for a variety of reasons irreducible to one single meta-constraint: first, the requirement of universality and neutrality typical of legal discourse; second, the individualistic and antigovernment aspect of the liberal ideology that permeates contemporary American public culture—an ideology which would make any plan by the state to promote a cultural transformation of collective beliefs pertaining to race look fundamentally illegitimate; last but not least, the very nature of the ultimate purpose assigned to affirmative action, since color blindness is arguably one of those mental states that can only be brought about if they are not directly and explicitly aimed at. In chapter five, I shall argue that the deracialization of American society that affirmative action may facilitate in the long run can also be hindered by the existence of negative side effects specifically induced by the visibility of the policy. Those include the additional stigma possibly inflicted on its beneficiaries, and the reinternalization by the latter of the “deficiency” that would account for the need to grant them some kind of preferential treatment. (Of course, in both cases, the occurrence of

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such negative side effects is arguably made more likely by the very fact of denouncing them on every possible occasion.)1 In order to avoid “as far as possible the invidious operation of official discretion [by state authorities]”2 in favor of one or several identifiable groups, and because affirmative action programs may generate hostile attitudes toward their intended beneficiaries beyond those already in place (the existence of which was one of the main reasons for the implementation of such programs), it is then tempting to dissimulate their most contentious features. The purpose of affirmative action—to reduce the saliency of racial categories in American society—makes it appropriate to conceal how the policy actually works. In order for affirmative action to reach its objective of curbing negative stereotypes about blacks through a planned improvement of their economic and occupational status, it would make things easier if the unusual character of the measures involved and their antimeritocratic component went unnoticed. Beside those negative side effects specifically related to the antimeritocratic dimension of affirmative action, the extent of which can easily be exaggerated, the very fact of acknowledging the existence of an allocative scheme taking account of race may well jeopardize the deracialization that one is trying to bring about in the long run. It is conceivable that by openly integrating race into the decision process, and therefore confirming its meaningfulness without being able to impose a common understanding of the meaning involved, affirmative action should rigidify and relegitimize the racial cleavages that the policy was meant to eradicate. In order to cope with that specific problem, it might be necessary to resort to various kinds of subterfuges. These are not sheer speculations. Social psychology studies relevant to assessing the different procedures designed to increase interracial contact do emphasize the risks involved in reaffirming the importance of race as a key factor accounting for the agents’ presence in the institutional space where (positive) racial interactions are expected to take place.3 So long as the criterion of race is seen to operate at the preliminary stage of identifying the participants in the interaction process, racial decategorization will be hindered. In order to get over this obstacle and increase the probability of success, one may be tempted to deliberately downplay the role held by race in the causal process leading to that interaction, especially in view of whites’ already existing inclination to perceive black individuals as specimens of their racial group. In short, the effectiveness of the intervention undertaken arguably depends on the existence of “a properly synchronized self-erasing process”4 designed to extract its very occurrence from the mind of the agents whose perceptions one wishes to

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transform. The success of affirmative action would thus be proportional to the decision makers’ ability to disguise how the policy operates.5 In chapter six, considering the effects that public discourse––in particular the many political and legal justifications put forward in favor of affirmative action––may trigger from the consequentialist perspective outlined in chapter three, I suggest that some of the main arguments advanced in the public sphere may be understood as reflecting an awareness of those anticipated effects strong enough to actually shape the views that the agent ends up endorsing. This is not particularly surprising, since the success of affirmative action from the deracialization point of view will ultimately depend in part on how the policy is perceived by those directly or indirectly affected by its existence. Given that such perceptions are influenced by legal statements, I shall argue that, in some cases, judges themselves tend to modulate their own discourse according to its likely impact on the ability of affirmative action to effectively forward the advent of a deracialized society, as if their arguments were actually premised upon instrumental calculations unsupported by legal reasoning. This underlying strategy is aimed at minimizing the difficulties due to some of the perverse incentives unavoidably created by the policy’s transparency. The idea here is that a situation in which affirmative action programs would be implemented without anyone knowing about it would eliminate those negative side effects that derive not from the policy’s existence, but from the revelation of its existence. In this respect, I shall argue that some of the most important developments in the Supreme Court’s case law on affirmative action and racial discrimination in general (and in some of the arguments made about the policy beyond the judicial sphere) can be understood as reflecting a tendency to approximate the hypothetical end state that would result from the unknown implementation of affirmative action programs. This is so since affirmative action is a policy that requires a measure of dissimulation in order to succeed. And that dissimulation, which is meant to control the expressive or symbolic dimension of the programs that coexist with their instrumental one, bears on the policy’s most distinctive and most contentious features: its nonmeritocratic component and the extent to which some of these programs take race into account.6 Without considering this as an indictment of affirmative action, I shall try to identify evidence of that rational process of minimizing the visibility and distinctiveness of the policy both in and outside of the case law. As far as the latter is concerned, I will argue that judges have made a significant yet underappreciated contribution to that process in several Supreme Court decisions, the importance of which is widely acknowledged quite independently of the interpretative framework that

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I suggest. The legal and extralegal elements reviewed in this respect will include the convoluted administrative history of affirmative action and its opaque character even for those very agents responsible for implementing it (employers, unions, etc.); the major turning point involved in the Supreme Court’s sweeping extension of the notion of “discrimination” in the Griggs v. Duke Power Company decision and its developments; the increasingly widespread idea that affirmative action should be replaced by a system of preferences granted on the basis of strictly economic and “social” (as opposed to racial) criteria of disadvantage; finally, the current predominance of a defective argument for affirmative action that has prevailed since the Supreme Court 1978 Regents of the University of California v. Bakke decision, in which such programs were justified in terms of promoting “diversity.” While all chapters in this second part of the book focus on the implicit dimension of the different framing processes7 in which supporters and critics of affirmative action (including Supreme Court justices) are involved, they make three analytically distinct claims: 1. The consequentialist and strategic justification of the policy developed in chapter three has some implications that render the public expression of it particularly risky. Here, the approach is strictly analytical: I do not purport to demonstrate that the entire reasoning expounded above has actually been endorsed by the Supreme Court’s justices, who, considering the risks involved, would then have been prudent enough to disguise their true point of view (chapter four). 2. Assuming one accepts either this entire reasoning or simply the definition of the ultimate goal that it ascribes to affirmative action, that is, the deracialization of American society, to acknowledge the very existence of the policy as a scheme with a nonmeritocratic dimension explicitly designed to benefit members of a limited number of groups defined on an ethnoracial basis will likely produce negative side effects, the extent of which should not be underestimated (chapter five). 3. Within the Supreme Court case law, one can indeed detect a tendency to dissimulate the specific nature of affirmative action in particular the degree to which race is taken into account by those invested with decision-making responsibilities, a dissimulation that one can reasonably assume to be partly designed to avoid the abovementionned negative side effects, and of which one may find evidence in a number of decisions whose importance is generally

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acknowledged quite independently of the analytical framework that I suggest (chapter six). Helpful as it is, this framework has its own limits, and I will try to resist the temptation of overgeneralization that might lead one to claim that it could explain about everything going on in the affirmative action debate. While “the need to discover common rules which apply to everything, to include a great number of objects in one category and to explain a collection of facts by one single reason, [often] becomes a burning and often blinding passion of the human mind,”8 one should be aware of the existence of that impulse and at least try to keep it under control. The contemporary Supreme Court case law pertaining to racial equality cannot be reduced to the unfolding of a single, overriding purpose waiting to be uncovered by self-proclaimed experts in the art of demystification. The obsession with “the subjective recognition of an overall sense “behind” the situationally predominant . . . motives,”9 which is the main weakness of functionalist sociology, should not be indulged. The tendency to conceal the actual workings of affirmative action, far from arising from a unified project carefully designed by an omnipotent deus ex machina, is only the point of intersection of several uncoordinated courses of action involving agents subject to different constraints and located in different sectors of the social universe. The functional or logical integration of such constraints into one single metaconstraint that would transcend all institutional divisions is an illusion not to be entertained.

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CHAPTER

FOUR

The Problems with the Deracialization Argument

The first category of problems is a function of the apparent contradiction between the requirement of neutrality and universality typical of legal discourse and the content of the sociological judgment underlying the justification for affirmative action that I have been arguing for. Indeed, this judgment involves acknowledging the sui generis nature of the disadvantage experienced by black Americans, a task for which judges are particularly ill equipped. The Legal Dimension: The Universality Requirement and the Limits of Pseudoinstrumentalist Reasoning for Constitutional Adjudication Any kind of public argumentation, that is, of ideally persuasive communication grounded on the assumption of universal rationality,1 must meet a set of (usually implicit) conditions. Among them there is the fact that the justifications put forward in support of a given institutional practice must be cast in demonstrably impartial terms and should not appear to reflect the interest of their author or any other of the contending parties too closely. This requirement is especially powerful regarding legal arguments, whose normative value is predicated upon their being phrased in abstract and universal terms. Because it is to apply generally, the law must transcend the heterogeneity of social experience so that the rules enacted should be able to operate across the board. And as far as affirmative

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action is concerned, this homogenization constraint does have a disparate impact on the justification to be considered here. For example, how are we to make sense of the fact that no legal controversy similar in scale to that surrounding affirmative action has ever been sparked by the preferential policies targeting veterans,2 or by the passage of the 1990 American With Disabilities Act, which requires employers to make a number of costly adjustments designed to accommodate one specific group of workers?3 A possible explanation for that discrepancy lies in the degree of potential universalization of the features defining the groups thus favored. As a matter of fact, no one stands immune from the risk of accidentally becoming part of the “group” of the handicapped. Undesirable as it is, that status remains potentially accessible to every individual. In contrast, since the specific disadvantage still experienced by African Americans as a consequence of racial identification is by definition inseparable from a set of phenotypical characteristics impossible for any outsider to acquire, the task of eradicating that disadvantage, which affirmative action might perform, is hard to reconceptualize in a way that would make it compatible with the universalization requirement. Yet, as long as affirmative action is conceived as an exception to a rule the validity of which remains otherwise unchallenged (whether it be a “color-blind” or a “meritocratic” rule), a case can be made that the conditions under which such an exceptional policy might be implemented ought to be stated in terms general enough to be eventually reintegrated into the set of rules to be applied across the board, as a subsidiary rule of some kind. In other words, assuming, as Dworkin implicitly does, that the type of disadvantage experienced by blacks would justify setting up a policy in favor of this group alone, in order to reconcile this with the universality requirement under which any nonblack individual finding herself in a “similar” situation as blacks should receive the same treatment, a judge would need to do two things. First, she would need to provide a substantive definition of that disadvantage, which would then allow her to determine, after a comparative examination, whether individuals other than blacks do or do not face a similar one. Second, she would need to answer that question in the negative. This dual task of specifying the nature of the disadvantage that arises from racial identification and of demonstrating its uniqueness is both difficult and necessary. If, in the case of the handicapped, the group’s distinctive feature is indeed and quite obviously—as the term “handicap” itself indicates—a factor of disadvantage, one cannot assume the existence of a similar consensus as to race being one. That the latter remains in

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and of itself—or rather through the informational and symbolic value that people still tend to ascribe to it— a source of vulnerability analytically distinct from its most immediately identifiable material correlates just cannot be taken for granted. Now, even assuming judges undertook an in-depth analysis of the nature of the disadvantage involved, simply explaining that disadvantage— which, as we have seen, requires using relatively sophisticated concepts such as “statistical discrimination,” “self-fulfilling prophecy,” and so on— is a fairly complex task, whose complexity itself arguably creates an obstacle to incorporating the deracialization argument into the case law. Besides, still from a pragmatic point of view, this explanation problem is compounded by the fact that many whites of non-Anglo-Saxon descent perceive a similarity—even a “formal equivalence”4—between the predicament of black Americans and their own experience as members of “ethnic” minorities, and thus see affirmative action as being partial and unfair toward them.5 In light of this, the slippery slope argument criticized above would remain somehow relevant in that, even if it were theoretically possible to justify not extending affirmative action to groups other than blacks, it could prove practically impossible to persuade members of such ethnic minorities of the validity of the distinction thus established, a distinction all the more vulnerable to criticism as it relies on a “kind of variable sociological and political analysis . . . [that] . . . does not lie within the judicial competence.”6 Moreover, there are other difficulties more specifically related to the analytical method generally used by the Supreme Court when it is called upon to adjudicate disputes arising under the Equal Protection Clause, a method by which the justices officially focus on the extent to which the classifications made by the state fit the objective that they are supposed to advance.7 Obviously, the main advantage of this pseudotechnical approach to constitutional adjudication, which pretends to assess the legislation challenged by referring only to instrumental rationality, lies in its strengthening the courts’ institutional legitimacy through the preservation of their apparent neutrality as to the determination of public values and goals, an area viewed as the exclusive province of the legislator under the conception of the separation of powers dominant in American political culture. By pretending to confine themselves to the task of verifying that the means employed suit the aim and that the class of population defined by the rule under consideration is not excessively under or overinclusive in this respect, judges conveniently exhibit the measure of deference to the majoritarian principle that is still expected of them.

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Of course, this pseudoinstrumentalist conception of constitutional adjudication is not immune from criticism. For one thing, since almost every statute actually aims to achieve a plurality of competing “objectives” among which the legislator must try to strike a balance, the courts generally have plenty of leeway in identifying the “purpose” that the classification under challenge is supposed to reach. For another, in certain borderline cases, such as the—admittedly improbable—one in which a high school principal would decide to put the black students on one side and the white students on the other during a graduation ceremony for purely “aesthetic” reasons,8 this approach is obviously ineffective. Since the fit between the classification used and the goal pursued here is virtually perfect, any declaration of unconstitutionality can only be predicated on a judgment about that goal itself, denouncing it either as not important enough in relation to the stigmatization of black students that might result from this initiative according to an implicit, cost benefit assessment, or as a pretext concealing the actual and constitutionally inadmissible motive for that decision. Yet, the contrived nature of this counterexample suggests that most of the time judges will have no trouble casting and resolving the issue at hand using this pseudoinstrumentalist analytical framework. On the one hand, the “strict scrutiny” applied to “suspect” classifications, with its requirement of an optimal fit between the means used and the purpose sought, directly enables them to strike down measures that do not meet this most stringent test because their stated objective is merely an imperfect substitute for the one that they are actually designed to reach. On the other hand, even when this is not the case, there is always the possibility of imputing to the legislator a more or less fictitious “purpose,” perfectly legitimate but with respect to which the classification involved may then be criticized and possibly invalidated for its insufficient “fit” (and with good reason). Thus, the judge is in a position to dissimulate both the countermajoritarian aspect of his intervention and, as the case may be, the intrinsically unconstitutional nature of the goals pursued by democratically elected authorities. Yet, insofar as the pseudoinstrumentalist approach requires that the purpose ascribed to the legislation should be defined in terms abstract enough not to destroy the myth that the Supreme Court assesses only the degree of fit of the means employed to achieve it, it excludes the deracialization argument from the set of legally acceptable justifications for affirmative action. Indeed, either one considers the intermediate goal of increasing the proportion of jobs held by blacks in the most gratifying occupations, in which case affirmative action would appear to be such a perfectly tailored

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instrument that judges would then lose all leeway in making such an assessment; or one considers the ultimate goal of reducing the degree to which racial identification produces a specific disadvantage for blacks, in which case any attempt to assess the effectiveness of affirmative action in this respect would require, once again, to openly undertake a “kind of variable sociological and political analysis . . . [that] . . . does not lie within the judicial competence.”9 Therefore, the specific methodology used by the Supreme Court in its case law pertaining to the Fourteenth Amendment also contributes to disqualifying the justification for affirmative action that is otherwise the most convincing one. The Political and Ideological Dimension: The Antiliberal Implications of the Deracialization Argument Beyond the specific problems raised by its potential endorsement by judges, the deracialization argument is also difficult to defend openly for a broader, less technical reason: it implies that the state is engaged in a project of transforming the beliefs of citizens about race. Given the predominance of liberalism and the persistent hostility toward all government interventions of a perfectionist variety in American public culture, any argument too obviously predicated upon a scheme of this kind is bound to be politically vulnerable. Following Erving Goffman’s insight that “the perceived undesirability of a particular personal property, and its capacity to trigger off these stigma-normal processes, has a history of its own, a history that is regularly changed by purposeful social action,”10 affirmative action may nonetheless be construed as an instrument for influencing collective beliefs about race by redistributing social goods among blacks and whites. While Dworkin himself does mention the need to “reform[ing] the racial consciousness of [American] society,”11 thus alluding to the importance of taking into account the cognitive psychology of racism in designing an antiracist policy, this point has been emphasized most explicitly by legal scholar Andrew Koppelman.12 In his view, the defense of affirmative action as an instrument for deracializing American society is logically inseparable from a “project [that] seeks to reconstruct social reality to eliminate or marginalize the shared meanings, practices, and institutions that unjustifiably single out certain groups of citizens for stigma and disadvantage.”13 Affirmative action would thus be a redistributive policy geared toward transforming individual perceptions in order to counter the “common sense” assumptions that help reproduce racial hierarchies.14

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Specifically, affirmative action would also be designed to raise the level of expectations and aspirations of blacks as to their own life prospects in American society, the two of them being arguably correlated. As a matter of fact, “desires tend to match the means available, and ambitions [adjust to] opportunities.”15 It is psychologically difficult to want anything other than “what one is likely to be able to get.”16 As a result, to remedy the distortions induced by black individuals’ tailoring their “preferences” to the oppressive constraints that make many of their potential goals objectively unlikely (an unconscious process reducing the frustration that they would have been bound to feel had they not refrained from valuing too much what seemed to be out of their reach),17 it is crucially important to modify their perception of the repertoire of possibilities by providing evidence that the positions they were formerly barred from are now open to them. Thus, precisely because of the ongoing persistence of “race” as a dominant principle of categorization in American society (even though this reality is one that the state hopes to change in the long run . . .), nothing can replace the visible presence of blacks in positions traditionally reserved for whites. In some cases, this is arguably the only way of supplying “role models” for members of that minority group.18 Beyond improving the living conditions of its most immediate beneficiaries, affirmative action may actually encourage all black individuals to revise upwards their probability of moving up in the social hierarchy and adapt their behavior accordingly. This would make inequalities in the distribution of affirmative action benefits within the targeted groups look less glaring once these positive, spillover effects are taken into account. Altering blacks’ informational environment in this way may well be necessary to remedy the fact that a minority of them19 apparently have “internalize[d] a negative self-image” and endorse negative stereotypes about themselves.20 Yet, although it is desirable for the greatest possible number of blacks to have one of these “role models” in their immediate surroundings, this conception of affirmative action does not require members of the different ethnoracial groups to be proportionally represented in each occupation. The main goal is to eradicate the stereotypes that define the legitimate holders of certain categories of jobs according to “race” (or sex), and to make sure that there is now a “critical mass” of blacks in these positions so as to prevent them from appearing as officiously “white only” any longer and to facilitate the emergence of a virtuous circle in this respect. The role model argument thus fits within an explicitly antiutilitarian framework in that, rather than taking blacks’ “revealed preferences” as a given, it implies that it is legitimate to

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transform through public policy those preferences that are the product of some coercive social conditioning, thereby acknowledging the inequality in the distribution of resources necessary for developing autonomous preferences between blacks and whites. Still, at the end of the day, one encounters the same difficulty once again: for the policy to be effective, it is surely preferable to dissimulate its nonmeritocratic dimension. If affirmative action is to create “role models” perceived as such within the black community, the success of black individuals should not be obviously the outcome of a scheme specially introduced to that end.21 In addition, the government’s involvement in such a transformative scheme designed to shape the mutual perceptions of blacks and whites tends to conflict with the restrictive view of its legitimate realm of competence dominant in the U.S. public culture.22 Thus, according to Tocqueville, whose intuition here would certainly be shared by a majority of the American public, A government can no more be competent to keep alive and to renew the circulation of opinions and feelings amongst a great people, than to manage all the speculations of productive industry. No sooner does a government attempt to go beyond its political sphere and to enter upon this new track, than it exercises, even unintentionally, an insupportable tyranny.23 In particular, the egalitarian dimension of liberalism itself may seem to disqualify the government from undertaking any kind of edifying mission—even one that would surreptitiously infuse in citizens the conviction that race is meaningless—since there is no reason to suppose “that those who rule are endowed with a superior wisdom,” which would make their beliefs more reliable than those of the governed.24 In this respect, Tocqueville’s analysis of the arguably insuperable contradiction between the democratic egalitarianism supposedly typical of the American political community and any project of “top-down” deracialization remains most enlightening: I do not imagine that the white and black races will ever live in any country on an equal footing. But I believe the difficulty to be still greater in the United States than elsewhere. An isolated individual may surmount the prejudices of religion, of his country, or of his race, and if this individual is a king he may effect surprising changes in society; but a whole people cannot rise, as it were, above itself.25

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This is precisely where the dilemma raised by fleshing out the implications of the deracialization argument lies: for the planned transformation of collective beliefs that it requires to retain a democratic character, this transformation must be cast as a self-transformation, one deliberately undertaken by the American people of their own free will. This, as we shall see in the next section, raises difficulties of a different kind, which could be circumvented to some extent by dissimulating the existence of affirmative action (even though that dissimulation may well have other purposes). Of course, in Dworkin’s perspective, this deliberate restructuring of individuals’ belief systems about race is not envisioned as an end in itself, but as an exceptional means made necessary by the unique history of black oppression in order to achieve a goal entirely consistent with the tenets of liberalism: to eliminate the specific disadvantage suffered by blacks because of the social value ascribed to a characteristic—color— intrinsically devoid of any moral relevance. However, as sociologists Peter Berger and Thomas Luckmann have pointed out within a broader theoretical analysis, what matters is also “the availability of a legitimating apparatus for the whole sequence of transformation. What must be legitimated is not only the new reality, but the stages by which it is appropriated and maintained.”26 And the manipulative and antiliberal dimension of the cultural transformation project that underlies the deracialization argument renders its legitimization difficult. As a matter of fact, the mere acknowledgment of its existence may well be counterproductive: insofar as affirmative action ultimately aims at altering individuals’ beliefs, the possibility of those individuals’ perceiving that state authorities have embarked on a program to this end is arguably itself a factor in the success or failure of this undertaking that one ought to take into account. Finally, even aside from the transformative dimension of the project involved, the utilitarian nature of the justification for affirmative action advanced by Dworkin has also raised some interesting objections. According to one of them, in defining the expected benefit as a reduction in the average degree of racial identification in American society— a benefit that is supposed to arise from bringing white and black students (or employees) into contact in a context supposedly conducive to the progressive demonstration of the fundamentally irrelevant nature of color—the argument does tend to initially “deindividualize” affirmative action beneficiaries and reduce them to their (temporarily) reified racial membership, as “undifferentiated fragment[s] . . . of a whole” of which they stand as the “expression” and “actualization.”27 This depersonalization and instrumentalization of individuals, in addition to the fact that it

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might seem contrary to one of the basic principles of the liberal ethic that Dworkin does not want to repudiate, runs the risk of alienating members of the target group (in every sense of that word). This is what Michael Sandel suggests in the following passage, an excerpt from a fictitious acceptance letter supposedly sent to a black applicant admitted to a top-tier university through an affirmative action program, which is meant to highlight the “disturbing” aspects of the utilitarian logic implicit in Dworkin’s argument: We are pleased to inform you that your application for admission has been accepted. Through no doing of your own, it turns out that you happen to have the traits that society needs at the moment, so we propose to exploit your assets [. . .]. No praise is intended or to be inferred from this decision, as your having the relevant qualities is arbitrary from a moral point of view. You are to be congratulated, not in the sense that you deserve credit for having the qualities that led to your admission—you do not—but only in the sense that the winner of a lottery is to be congratulated.28 Yet, it is worth emphasizing that this parody of Dworkin’s justification, however amusing, in no way demonstrates its invalidity. As Sandel himself suggested in a more recent article, the problem here lies in the political vulnerability of such arguments,29 or, to put it more starkly, in the fact that making them publicly is bound to produce negative side effects. The Psychological Dimension: Color Blindness as a By-Product The dissimulation discussed in this chapter is not only a function of political considerations, but must also be understood in light of the ultimate goal that affirmative action is meant to reach: “color-blindness.” For insofar as this color blindness consists in a general absence of consciousness of racial distinctions, it belongs to a category of mental states whose realization is subordinated to prerequisites of a specific kind. This is indirectly shown by Jon Elster’s perceptive analysis of those particular states, which confirms the impossibility of publicly defending affirmative action as an instrument of deracialization without undermining the policy’s effectiveness. As a matter of fact, the word “color blindness” has at least two different meanings, although these are often conflated in the affirmative action

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debate. It refers to two distinct types of negation: “external” and “internal,” to use Elster’s terms. While the first, “external” negation consists in the fact of not being aware of something, “internal” negation consists in a deliberate effort not to take that thing into account. Thus, The external negation of attention is indifference, the internal negation of attention is abstraction: . . . The fact of not being aware of x is different from the awareness of the absence of x. . . . In the awareness of the absence of x, x is at the same time present and absent: it is present as the object whose absence one is aware of.30 Such is the case for skin color when the term “color blindness” refers to an immediately valid and legally binding principle. For instance, the obligation for employers not to take race into account so as to disadvantage an applicant in relation to others enclosed in Title VII of the Civil Rights Act of 1964 actually requires them to go through an internal negation, which logically presupposes the nonrealization of the corresponding “external” negation: it is the very saliency of race and the likelihood that race consciousness will lead to harmful behavior that make it possible to comprehend the prohibition enacted. That prohibition simply defines a number of settings in which people ought to act as if they were literally color-blind. In contrast, when “color blindness” refers to the deracialized social state that affirmative action is arguably meant to achieve, it is indeed a “lack of consciousness” of racial distinctions, that is, a kind of “external” negation that is then considered. The point at issue is whether the prescription for “color blindness” in the metaphorical sense—color blindness as an internal negation— is the best strategy for reaching “color blindness” as a descriptive feature of the ideal society, that is, color blindness as an external negation.31 It is worth emphasizing that the nonperception of race, when cast as the object of a command, can only stand as a metaphor. If one were to understand it literally, the prescription to be “color-blind” would qualify as a contradictory injunction, “the explicit content of which is actually incompatible with its pragmatic requisites.”32 Just as the command, “Be spontaneous” requires a deliberate effort to achieve a state the essence of which is precisely a kind of effortlessness, the command, “Do not take race into account” basically amounts to saying, “Remember that you should never think about this forbidden thing,” a precept that requires thinking “about it constantly, in order never to think about it.”33 States of this kind, like spontaneity or inattention toward a given object, “can never . . . be brought about intelligently or intentionally, because the very attempt to

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do so precludes the state one is trying to bring about.” Those states “are essentially by-products,” since their generating process is necessarily unintentional: any deliberate attempt to induce them in one’s own mind is bound to fail. In Elster’s view, they include “sleep . . ., forgetfulness, . . . innocence, . . . gratitude . . ., love,” and “self-esteem.”35 The defining feature that brings them together is a lack of intentionality, which is ontologically incompatible with the intention inherent in the desire to make them occur. In particular, when the target of desire is “a privative state” consisting in “the absence of a specific form of consciousness,”36 that lack of consciousness cannot itself be the product of an act of consciousness. The project of deliberately removing a given thought or representation from one’s mind is analytically self-defeating, “since it requires a concentration . . . that is incompatible with the absence of concentration one is trying to bring about.”37 And the state of color blindness is precisely made of such an absence of concentration, since what it suggests is less a nonperception of differences in skin color than a kind of natural indifference toward color, which may be the object of a wish but cannot arise as the product of a specific intent: “It is plainly impossible to become indifferent the way Pascal thought you might become a believer, namely by pretending to believe.”38 Given the impossibility of bringing about a state of external negation through a process of internal negation, color blindness does seem to belong to those mental states “[which] have the property that they can only come about as the by-product of actions undertaken for other ends.”39 This argument does not necessarily stand in opposition to the justification of affirmative action as an instrument designed to deracialize American society, however. Because Elster’s reasoning unfolds mostly within the boundaries of a phenomenology of individual consciousness, the conditions under which it may be possible to promote the advent of color blindness as a social state deserve further examination. While Elster does not consider the issue of race, his work does provide some useful insights in this respect. Commenting on “the widespread tendency to erect into goals for political action effects that can only be byproducts,” he suggests that it might still be possible, in some cases, to use “indirect strategies.”40 Unlike the individual attempting “to induce in himself a state that turns out to resist deliberate induction,” the one who tries “to set up in another a state that is essentially a by-product” is not necessarily bound to fail. “If the intention of reaching X by doing Y is incompatible with X, in order to reach X, one would have to hide to oneself that Y is done with that specific intention.” No doubt this is a very difficult, if not impossible task. Yet, “the intention of misleading someone

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else as to one’s own intentions surely is not as paradoxical . . ., since it is possible to do that without deceiving oneself.”41 In short, assuming the state to achieve is considered desirable enough to justify setting up “a complex causal machinery”42 for that purpose, the only requirement would seem to be that the true function of such a contrivance should not be recognized as such. Elster’s analysis thus reinforces the hypothesis according to which affirmative action, as being part and parcel of a deliberate attempt at reducing the degree of racial identification in the United States, must be concealed in order to achieve its intended effect. However, in contrast with the examples mentioned by him, the paradox here lies not in the existence of such an attempt but in its being made explicit to the agents whose representations of race are supposed to be altered in the process––and who therefore must be considered as an audience distinct from the elite presumably responsible for this project of cultural transformation. As Elster points out, the only option one ought to dismiss as “pragmatically inconsistent” would be to “publicly advocate the introduction [of a given policy] because of the side effects that would follow in its wake.”43 The occurrence of those side effects precisely depends on the availability of other motives for supporting the policy that the agents involved might share. Defining such instrumentally required motives is arguably one of the key issues at stake in the political and legal debate on affirmative action.

CHAPTER

FIVE

The Negative Side Effects of Transparency

Apart from the difficulties involved in publicly stating what the underlying purpose of affirmative action is or should be, namely the top-down deracialization of American society, acknowledging the very existence of that policy––and especially its antimeritocratic component––is likely to trigger several negative side effects. The External and Internal Dimensions: Stigma and Self-esteem Among the negative side effects worth considering, the most dangerous one is arguably the additional stigma possibly inflicted on the intended beneficiaries of affirmative action programs.1 Insofar as the policy logically implies an acknowledgment of the fact that those who benefit from the preference involved would not have gained the positions they eventually did gain without it,2 is there not a risk of reinforcing the suspicion that they are not fully qualified for such positions—a suspicion whose existence was one of the main reasons for affirmative action programs’ being set up in the first place? Since it is generally impossible to draw a line among the potential beneficiaries of affirmative action between those who did take advantage of it and those whose qualifications were already high enough to make any kind of preferential treatment appear entirely unnecessary, there is a chance that the aggregate level of stigma experienced by blacks as a whole might increase as a result of the racespecific nature of the policy. Of course, the difficulty lies in assessing the extent of that additional effect of stigmatization specifically related to the visibility of affirmative action as compared with the stigma already

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attached to blackness as such. The policy may still help reduce that stigma in the long run, once all its consequences are taken into account. Most of the relevant studies in the field of social psychology, however, do suggest that this marginal effect of stigmatization is real.3 Although they do not deal with affirmative action directly, the wellknown experiments conducted by Henri Tajfel and his colleagues at the end of the 1960s are especially telling in this respect. Their goal was to single out the effects of the very process of social categorization, regardless of what the basis for categorization may be. To do so, a given set of individuals was divided into two subsets according to an arbitrary criterion commonly acknowledged as being devoid of any affective value.4 The members of the groups thus formed were then asked a number of questions. As their answers revealed, the subjects tended to overestimate the extent to which the persons now classified as belonging to different “groups” were separated by other objective differences, and they perceived the group to which they did not belong as a homogeneous entity, less easy to disaggregate into a set of individual units.5 Also, and most importantly, they developed a preference for members of their group6 and discriminated against nonmembers whenever they were given the opportunity to do so. For instance, when asked to choose among various ways of dividing a given amount of money among all the participants, respondents usually chose the method that had the effect of maximizing the gap between the amounts awarded to each group considered in the aggregate.7 More directly to the point of assessing the potential effectiveness of affirmative action as an instrument for deracializing American society, one also noticed that individuals were much more likely to remember the shortcomings of the other subjects when the latter belonged to the opposite group.8 Besides, each group member tended to impute the shortcomings of outsiders to negative internal dispositions and those of insiders to strictly contingent factors.9 It is worth emphasizing that these discriminatory attitudes and the underlying cognitive distortions have no other basis than the very act of group division, since the criteria used for that division were random or obviously trivial. It is the fact of classification itself that structures the mutual perceptions of the individuals thus classified. In this light, it is perfectly reasonable to fear that the official definition among all competing applicants of one or several categories of “potential beneficiaries of affirmative action” might have a negative impact on their relationships with those who are bound to remain outside of this newly created ensemble. As a matter of fact, several experiments have shown that once the category

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“black” has been activated by an exogenous source of information, such as the announcement of an affirmative action program at a given firm or university designed to benefit blacks among others, individuals become more inclined to use that category as an “focal point for their interpretations and assessments.”10 In other words, the activation threshold of the category becomes lower still.11 The plausibility of that hypothesis has been confirmed by several other studies in social psychology, some of which deal directly with affirmative action. Consider the following example, described by Thomas Pettigrew and Joanne Martin. The white subjects of their experiment were handed five anonymous résumés supposed to be those of individuals recently recruited for a position of financial advisor at a given company. Each résumé had received a one-word appraisal at the first step of the recruitment process: three of them had been identified as “good,” one as “intermediate,” and one as “poor.” In addition, the participants were informed that one of the five applicants was a black person and that two were whites, about whom a few other details obviously irrelevant to their qualifications (such as hair color) were also mentioned. The subjects were then asked to guess which of the five résumés belonged to each of these three applicants. In theory, given the lack of immediately relevant data on any of them, one might have expected that, absent prejudice, the “poor” résumé would have been assigned to the black applicant at a rate of about 20 percent. In fact, that rate was 37 percent. More importantly, when another similar experiment was conducted with other white subjects, the only difference being that the existence of an affirmative action program was now mentioned, the proportion of those who attributed the “poor” résumé to the black applicant reached 69 percent.12 This is by no means an isolated example: nearly all social psychology studies that I have come across testify to the specific stigma suffered by blacks and members of other groups benefiting from affirmative action as a result of the policy’s visibility.13 In this context, it would be unwise to dismiss the possibility that the distinctions among applicants reinstitutionalized by affirmative action should come to be understood as an implicit confirmation of the validity of racial and gender negative stereotypes. These distinctions may well give the impression that such stereotypes are actually shared by the authorities responsible for setting up the programs.14 In order for the elevation of minority group members in the economic and occupational hierarchy to be taken as evidence of how inaccurate those stereotypes are, one should not be able to dismiss their success as resulting from an antimeritocratic scheme specifically designed to that end. The fact that it

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is common knowledge that blacks and other disadvantaged minorities are receiving some kind of special treatment and are not selected only on their qualifications may actually modify the social meaning of their gaining access to top-rank positions. To put it more bluntly, an assessment such as “He’s an Ivy League graduate; he must be a rather bright fellow” may turn into something like “He’s a black Ivy League graduate; maybe he wouldn’t have gotten where he is now but for affirmative action.” As sociologist Gordon Allport already pointed out in a seminal study published more than 50 years ago, in order to eventually curb the power of racism, one needs to bring “the two races into close contact on an equal footing in a common project.”15 Furthermore, assuming performance is correlated with qualifications (as previously assessed within the selection process), race-based affirmative action, insofar as it would detract from the rule under which the most qualified applicant ought to be selected, would make it rational to take race into account as a proxy for expected performance, which may then logically lead to statistical discrimination as defined above. The visibility of affirmative action might thus entrench the very practices that the policy was meant to do away with, by apparently corroborating existing rationalizations about the “inferiority” of black workers and students.16 True, this perverse reinforcement of the public image of (relative) incompetence of the members of groups benefiting from affirmative action is probably perceptible only for positions that require some prior training and a high level of qualification: when it comes to unskilled labor, the difference in initial “qualifications” between blacks and whites can only be slim, if it exists at all. The fact remains, however, that according to the deracialization argument, it is precisely among the most qualified that affirmative action should undertake to increase the proportion of blacks so as to reduce the perceived correlation between race and occupation. In that case, the likelihood that perverse effects such as those considered above should obtain is far from negligible. Yet, while some Supreme Court justices did emphasize this enhanced risk of stigmatization of the beneficiaries of affirmative action,17 others denied its existence through a rather peculiar reasoning. In Regents of the University of California v. Bakke, Justices Brennan, White, Marshall, and Blackmun, because minority students after being admitted through preferential treatment were then subject to the same assessment criteria and graduation requirements as other students, reached the following conclusion: Since minority graduates cannot justifiably be regarded as less well qualified than nonminority graduates by virtue of the special

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admissions program, there is no reasonable basis to conclude that minority graduates at schools using such programs would be stigmatized as inferior by the existence of such programs.18 This is far from obvious, however. First, because even assuming that such a response is indeed “not justifiable,” it is perfectly “reasonable” to take into account the existence of a tendency to stigmatize blacks as inferior in American society which affirmative action could predictably reactivate, for without such a tendency the policy would not have any raison d’être. But also because it is not self-evident that this response is actually unjustifiable, as Justice Scalia points out in characteristically blunt terms: To put the issue to you in its starkest form: if you must select your brain surgeon from recent graduates of . . . [a] medical school [with an affirmative action program] and have nothing to go on but their names and pictures, would you not be well advised, playing the odds, to eliminate all minority group members? It is well known to the public that the outstanding institutions of higher education graduate the best and the brightest principally through the simple device of admitting only the best and the brightest. . . . Thus, insofar as “public image” is concerned, the immediate and predictable effect of affirmative action is to establish a second-class “minority” degree which is a less certain certificate of quality.19 Insofar as affirmative action can objectively confer a certain predictive value on race after the admissions process is completed, it does make sense to reduce the policy’s visibility to the greatest extent possible. In addition, this might help allay negative side effects of another kind, that is, those possibly related to the psychological incentives that affirmative action risks creating among its designated beneficiaries. As Frederick Douglass pointed out long ago, Men are so constituted that they derive their conviction of their own possibilities largely from the estimate formed of them by others. If nothing is expected of a people, that people will find it difficult to contradict that expectation.20 Insofar as granting preferential treatment to black applicants implies acknowledging the inferiority of their average qualification level, the policy may thus have a harmful effect on them, in spite of the fact that this (hopefully temporary) predicament is the outcome of past injustice. Affirmative action could then reinforce the doubts that blacks themselves

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may entertain as to their own abilities as a result of centuries of racist oppression.21 To the extent that the satisfaction derived from securing a valuable position depends on one’s subjective sense of owing this success to one’s own accomplishments rather than to the existence of an administrative requirement binding the decision-making institution, the policy might adversely affect the self-esteem of its beneficiaries, because those of them who would have secured that position in the absence of affirmative action usually cannot know it for sure.22 In short, it is at least conceivable that the visibility of affirmative action and the fact that blacks are aware of the existence of a special policy being implemented in their favor should have perverse effects on their confidence in their ability to make it on their own in American society. The Limits of “Perverse Effects Analysis” As noted by Albert Hirschman, the identification and analysis of unintended, perverse effects is always appealing because of its apparent sophistication, of the often paradoxical quality of the conclusions reached, as well as the flattering position in which it allows the scholar to cast herself: that of an overly perspicacious observer uniquely able to debunk standard, “naïve” beliefs about social causality.23 Therefore, a few caveats are in order. First, the interpretive framework outlined above does not require us to assume that the negative side effects related to the visibility of affirmative action are objectively so extensive that they would justify the attempts at dissimulation to be described in chapter six. For instance, as far as the potentially negative effects of affirmative action on the selfesteem of its beneficiaries are concerned, the (limited) empirical data available suggest that such harm is far less serious than one may have feared, although it may still increase as a result of incessant speculations about it.24 So much is (impressionistically) confirmed by the 40 interviews with African Americans students that I conducted at the University of Chicago and at Yale in 1996 and 1997, in the course of which all the respondents (including the six of them who were openly against affirmative action) dismissed the “self-esteem” argument as hypocritical and/or simply ludicrous. More often than not, their response was part of a broader stance supporting affirmative action not as an instance of “preferential treatment” at variance with the prevailing standard of distributive justice, but as a way of proactively countering a discrimination still widespread and by which they would be adversely

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affected in the absence of a policy of this kind. A case can be made that this argument is not only of dubious legal value (since, by presenting affirmative action as another, admittedly more drastic, antidiscrimination tool, it implies that “regular” antidiscrimination law is bound to fail),25 but is also grounded on an unduly pessimistic assessment of the current state of race relations in American society, at least as far as higher education is concerned. The students’ apparent acceptance of it nevertheless seems to enable them to avoid the risk of self-deprecation that might otherwise be associated with the explicitness of affirmative action. Similarly, the additional stigmatization that affirmative action may inflict on all black individuals—a point that many critics of the policy rush to make without bothering to discuss the available evidence in a systematic way26––ought to be viewed in the light of the data unambiguously demonstrating that race still independently stands as a stigmatizing feature, regardless of any “preference” granted to minority members. As shown by many studies in social psychology, in the United States the activation threshold of the “black” category remains remarkably low no matter what. Race still works as a kind of prism through which social information is encoded in a specific way.27 For instance, the same ambiguous gesture (or posture) will be perceived as harmless or threatening depending on whether the individual under consideration is black or white.28 Likewise, systematically more negative and more categorical assessments of black employees’ performance in situations where it is actually identical to that of their white coworkers have also been observed in cases where the negative side effects of affirmative action cannot be held responsible for them.29 Finally, both the overall severity of individual judgments on blacks and their greater polarization30 mostly seem to be a function of the degree of attention that members of this group attract, with that attention being related to their proportion in the population that one is considering.31 The bulk of the problem lies in the small number of blacks in that population despite affirmative action. It is the limited size of the black presence that prevents racial heterogeneity from becoming unremarkable and fosters the perception and self-perception of black individuals as tokens, as representatives of their group whose behavior always engages the reputation of the group itself. The specific kind of pressure that such a situation engenders is described in particularly eloquent terms by this black Princeton student: I can’t begin to describe the tension I sense in a classroom when I—the only black student in the class—speak. Before I open my mouth, I have to carefully edit in my mind everything I want to

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say. If I fumble with my words or say something that isn’t exactly right, I see some turn away in embarrassment. . . . When this happens, I leave the room as though I have further damaged young white America’s perception of black students. On the other hand, if what I say is well-orchestrated and seems plausible, I see two reactions: one of surprise on the face of the other students that I could articulate and relate to such a mainstream topic; and another of relief, from those students who were hoping that I wasn’t as one-dimensional as they had thought. When this sort of things happens, I get a warm feeling inside, the feeling that comes from knowing you have represented your people adequately in the eyes of the disillusioned majority.32 While affirmative action may sometimes corroborate these negative expectations by placing underqualified black and Hispanic students in an exceedingly competitive environment, the additional stigmatization that the policy might provoke remains in all likelihood marginal in relation to the stigma still attached to race considered independently from the status of affirmative action beneficiary, a stigma that this policy might be able to reduce, once all of its consequences are taken into account. Moreover, in the context of university admissions, a case can be made that part of this additional stigmatization derives less from the visibility of affirmative action than from how the policy actually works. Generally speaking, the likelihood that bringing into contact white and black students will indeed help to reduce racial stereotypes depends on at least three distinct factors: whether those whites who are prejudiced are willing and/or able to take into account the existence of “counterexamples”; the degree to which the interactive situation actually allows for the acquisition of such edifying information; and the propensity of the individuals who endorse negative stereotypes about blacks to extrapolate from particular counterexamples so as to alter the content of the stereotype itself, thus modifying their beliefs and background assumptions about the standard features of the group.33 It is in relation with the second of these three factors that affirmative action might have a damaging effect, due to the extent of the “preference” granted. As a matter of fact, there are very few black high school students whose Scholastic Assessment Test (SAT) scores are high enough to meet the usual admissions criteria of top-tier American universities. For instance, according to a famous study of the Harvard admissions process done in 1971, in the (otherwise unlikely) event that only the verbal scores on the SAT were taken into account, the proportion of blacks in

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the student body would have been as low as 1 percent—instead of the 7.1 percent actually registered.34 Twenty years later, in 1991, according to Linda Wightman’s calculations, only 24 blacks would have been able to enter one of the 18 best law schools in the United States solely on the basis of their grade point averages and scores on the Law School Admission Test (LSAT).35 Similarly, in 1994, among all black and Hispanic students admitted to UCLA, only 11 percent of the former and 17.1 percent of the latter were so on the basis of strictly “meritocratic” criteria, as against 82.6 percent of Asians and 94.9 percent of Whites.36 As a consequence, the only way of including a significant number of blacks and Hispanics in the student body is to accept the existence of a gap between their scholastic performance and that of White and Asian students immediately prior to admission. To take but one particularly striking example, in the University of Texas law school’s affirmative program under challenge in the case Hopwood v. State of Texas,37 the “presumptive admit score,” defined on the basis of grade point averages and LSAT scores, was 189 for blacks and Hispanics, and 199 for whites. Yet, the score below which an application would normally be turned down without more—the “presumptive deny score”—was 179 for blacks and Hispanics, and 192 for whites, a score higher than the one that almost automatically guaranteed admission for members of the two largest ethnoracial minorities.38 And this example is by no means exceptional.39 Also, and more importantly, this initial gap does not entirely vanish later on, as reflected by the discrepancy in graduation rates. Thus, according to a U.S. Department of Education study, among college freshmen in 1980, 52 percent of whites had earned their Bachelor of Arts five years later, compared to only 26 percent of blacks. This 50 percent gap has been confirmed by later studies featuring the universities of Cornell, Berkeley, Ohio State, and the Massachusetts Institute of Technology..40 To account for such outcomes, some scholars have argued that it is indeed the mismatch induced by affirmative action that is mostly responsible for the high dropout rate among black students, while those students would arguably have succeeded in institutions with requirements better suited to their preadmission level. For once the top-tier universities lower their admission standards in order to achieve the desired percentage of black students, second-tier institutions will necessarily be deprived of the fraction of black applicants whom they otherwise could have admitted without preferential treatment. Then, if these institutions also wish to secure a certain proportion of blacks in their student body, they will have to lower their own standards, thereby prompting third-tier institutions to do the same, and so on and so forth. Ultimately, the consequences of this

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recurring substitution effect will spread throughout the entire university system.41 One may thus reasonably fear that the visibility and persistence of the initial qualification gap between members of different racial groups (in the absence of which affirmative action would be unnecessary) should be held to confirm the validity of negative stereotypes about blacks and Hispanics, any manifestation of which might then be interpreted as evidence of some lingering racism justifying the existence or reinforcement of affirmative action programs.42 In this respect, the 1998 book by two former presidents of Princeton and Harvard, William Bowen and Derek Bok, presenting the results of the first large-scale statistical study on the effects of affirmative action in university admissions, does introduce some interesting evidence.43 The authors collected data over a period of several decades on a total of more than 80,000 students registered in 28 top-tier institutions of higher learning, which include information about their career after they graduated from college. In addition, on the basis of the answers given to a detailed questionnaire sent to all such students, Bowen and Bok attempt to assess the impact of affirmative action on race relations in the United States more broadly. It was the first time an assessment of this kind was based on a body of data more substantial than a mere juxtaposition of anecdotes recounting incidents that the policy might be held responsible for44 and/or the musings of a few black intellectuals concerned with the potential devalorization of their hard-earned credentials.45 Interestingly, the findings of this study suggest that the additional stigmatization of affirmative action beneficiaries related to the actual operation of the policy––as opposed to its visibility––is also lower than what one might have expected, at least in those top-tier institutions. As a matter of fact, after comparing the preadmission performance of black students probably admitted because of affirmative action with that of white students who did not benefit from the policy, the authors demonstrate that in a large majority of cases the policy does not lead to the admission of black applicants who do not have the minimal qualifications required and would therefore be bound to fail.46 Strikingly enough, for the institutions included in the sample, though the graduation rate after four years of college among black students (75 percent) is still lower than the corresponding percentage among Asian, white, or Hispanic students (without this discrepancy being entirely explainable by the initial test score gap), it is nevertheless much higher than the graduation rate of black students enrolled in less prestigious institutions.47 To be more specific, contrary to what the “mismatch” hypothesis might lead one to surmise, there is a positive correlation for members of all racial

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groups––including blacks––between graduation rates and the university’s degree of selectivity, regardless of SAT scores.48 In other words, the better the university’s reputation and the more difficult it is to get into, the greater the probability that the black applicants admitted will graduate, even if the gap between their preadmission performance (measured in terms of grade point averages and SAT scores) and that of white students is also wider. This finding is all the more important as a degree from a famous institution has had increasing returns in terms of income and access to managerial positions in recent years. By raising the relative cost of dropping out, this development was apparently instrumental in fostering the determination of black students.49 Finally, Bok and Bowen’s study is not limited to a description of the quantifiable effects of university affirmative action programs on the economic and occupational status of black Americans. It also indicates that in the eyes of most alumni of these institutions (black and white), the diversity of their academic environment and the interracial exchanges that it allowed did help reduce stereotypes and mutual animosity.50 True, given the unrepresentative nature of the sample, it is uncertain whether these conclusions hold for the entire American university system. One cannot rule out the possibility that the very selectivity of the universities included, insofar as these institutions are able to drain the small fraction of black students with qualifications similar to those of the best white students, should explain why they manage to avoid most of the dysfunctionings of affirmative action related not to the visibility of the policy, but to its very implementation. In that case, the concealment of affirmative action might not be able to remove all of the programs’ potentially stigmatizing effects.

CHAPTER

SIX

Evidence of Dissimulation Strategies

This chapter aims at uncovering some of the numerous attempts to conceal the specific nature of affirmative action made by those who were in a position to legitimize it. While they do not necessarily reflect an endorsement of the entire reasoning developed in the two preceding chapters, such attempts do suggest that some of its conclusions have been taken into account. The Political and Administrative Origins of Affirmative Action: A Story of Calculated Ambiguity and Artificial Distinctions When the agencies responsible for monitoring the implementation of employment antidiscrimination law began to move toward considering “equality of results” as their objective, there was still a deep-seated reluctance on their part to acknowledge this policy shift. For instance, in 1966 the new Equal Employment Opportunity Commission (EEOC) guidelines redefining the validity criteria for employment tests—and thus anticipating on the Griggs v. Duke Power Company Supreme Court decision1—were not published as they should have been under the Administrative Procedures Act of 1946, on the pretense that these guidelines were only concerned with technicalities related to the enforcement of Title VII of the Civil Rights Act and did not involve an interpretation by the agency of the very substance of the law.2 Yet, in most cases the ongoing dissimulation pertained less to the existence of such administrative documents than to the exact nature of the requirements they imposed, with the remaining uncertainty leaving

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plenty of leeway for the agency in charge of determining whether or not these requirements had been met. Thus, in January 1967, to a question about the conditions that an affirmative action program had to satisfy so that the would-be contractor whose employment practices were under scrutiny could be awarded the contract, the director of the Office of Federal Contract Compliance (OFCC), Edward Sylvester, replied that there was “no fixed and firm definition of affirmative action”: the policy would “vary from time to time, from day to day, from place to place”; while it did “not necessarily include preferential treatment,” it included “anything that you have to do to get results.”3 As he went on to explain, Affirmative action is really designed to get employers to apply the same kind of imagination and ingenuity that they apply to any other phase of their operation. When there is a breakdown, or when something goes wrong in production, it is known fairly quickly and something is done about it in short order. We expect the same kind of attention and the same kind of focus of interest at all levels on the matter of equal employment opportunity.4 By embracing a results-oriented approach while leaving it to the employer to identify the measures necessary for securing such results, the agency could thus protect itself against possible charges of infringement on Title VII of the Civil Rights Act of 1964, since that law, of course, also banned employment discrimination against whites. While that most convenient stance eventually had to be abandoned in November 1968, this happened only because the General Accounting Office rejected an early version of the Philadelphia Plan5 that still left the validity criteria for affirmative action programs that contractors were supposed to implement purposely vague.6 Only after a controversy over the originally implicit nature of the measures that the employers were asked to take did such a minimal clarification occur, with quantified “goals” as to the ethnoracial distribution of the workforce now being reluctantly provided.7 Besides, once those “goals” were defined, the supporters of affirmative action attempted to deemphasize the departure from the Civil Rights Act that such a move entailed by constantly harkening back to the difference between “goals” and “quotas,” with a view to focusing resistance on the latter.8 This made sense, since as early as 1947 “quotas”—once applied by some Ivy League universities in order to restrict the number of Jewish students9—had been officially described by the Commission on Higher Education set up by President Truman as a typically un-American and undemocratic practice.10 That practice is still highly unpopular, as

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reflected in the aborted nomination of black legal scholar Lani Guinier, now a professor at the Harvard Law School, to the position of assistant attorney general for civil rights in the early 1990s. The nickname “quota queen”––with which Guinier was then branded by her opponents for having advocated a complex system of proportional representation in national and state elections11––helped discredit her to such an extent that President Clinton eventually decided to drop the nomination. The disqualifying value attached to the “quota” label was also indirectly confirmed by a 1988 Harris poll which found that 55 percent of whites were in favor of affirmative action programs for blacks and other minorities as long as they did not impose strict quotas, a percentage substantially higher than when this additional specification was omitted.12 Yet, the insistence of agency officials on the difference between the supposedly beneficial “goals” and the dreadful quotas, while it made sense in terms of political acceptability, still remains hard to justify.13 Even assuming that the greater flexibility of such “goals” is not an illusion (and that this term is not, as suggested in a 1976 district court decision, simply a code word for quotas14), a case can be made that the harm these two kinds of affirmative action inflict on white individuals is identical in all meaningful respects: whether those are denied a job because of an intangible quota or due to the more informal efforts undertaken to reach a “goal” that in theory has no mandatory value does not make a significant difference as far as they are concerned. The difference there is strictly administrative and procedural, and attempts to assess the policy’s legitimacy in terms of its degree of rigidity/flexibility are understandable mainly as a diversion of some kind.15 Broadening the Notion of “Discrimination”: The Illusion of Continuity More interesting still in relation to the “strategic dissimulation” hypothesis is the deeply ambiguous meaning of the term “discrimination” as construed by the Supreme Court since the beginning of the 1970s in the process of fleshing out the requirements of Title VII of the 1964 Civil Rights Act. It is to this part of the case law that I now turn. Griggs v. Duke Power Company In July 1965, a North Carolina contractor, Duke Power Company, decided to restrict participation in a training program that allowed employees to be promoted to better-paid jobs. To be eligible, one had

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to meet at least one of the two following conditions: being a high school graduate, or having obtained a score above the national average on two aptitude tests, one of which was intended to assess the applicants’ general understanding of mechanics (not their ability to perform the specific tasks involved in the jobs under consideration). As a practical matter, given the poor quality of the schools that blacks were forced to attend before the end of de jure segregation in 1954, each of these two recruitment criteria de facto excluded a higher proportion of black applicants. The issue to be decided by the Supreme Court was whether these selection procedures, which disadvantaged blacks in the aggregate, qualified as discriminatory under Title VII of the Civil Rights Act of 1964. In a 1971 decision, Griggs v. Duke Power Company, the Court’s answer was a resounding (and unanimous) “yes.” That decision was to some extent surprising, since the prospect that hiring tests such as the one used by Duke Power Company might be held invalid because of their exclusionary effect on a disproportionate number of black applicants had already been considered and discarded during the congressional debates pertaining to the passage of the Civil Rights Act. The “Clark/Case memorandum” drafted by two senators supporting the bill, whose goal was to clarify the points that remained controversial, had made this explicit: There is no requirement in Title VII that employers abandon bona fide qualification tests where, because of differences in background and education, members of some groups are able to perform better on these tests than members of other groups. An employer may set his qualifications as high as he likes, he may test to determine which applicants have these qualifications, and he may hire, assign, and promote on the basis of test performance.16 What is more, in order to placate some of the opponents to the legislation, the statute itself, in its section 703 (h), incorporated the substance of the memorandum in this respect: Notwithstanding any other provision of this title, it shall not be an unlawful employment practice for an employer to . . . give and to act upon the results of any professionally developed ability test provided that such test . . . is not designed, intended or used to discriminate because of race, color, religion, sex or national origin.17 Therefore, aside from the unchosen option of holding that the employer had actually a hidden discriminatory purpose,18 the only way

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for the Supreme Court to invalidate the test under challenge without openly departing from congressional intent was to modify the meaning of the term “discrimination” while denying that it did anything but flesh out the implications of a choice already made by Congress itself: “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.”19 Far from banning only “overt discrimination,” the law was also directed at criteria “fair in form but discriminatory in operation,” such as “practices, procedures, or tests neutral on their face, and even neutral in terms of intent,” which nevertheless “operate to ‘freeze’ the status quo of prior discriminatory employment practices—or so the Court argued.”20 Yet, despite its protests to the contrary, what the Supreme Court did here was to expand on its own initiative the notion of “discrimination” so as to make it apply to indirect discrimination, that is, to recruitment practices that do not rely on any of the unlawful grounds for employment decisions enumerated in Title VII (race, color, religion, sex, national origin) but still work to the disadvantage of a disproportionate number of minority group members, whether intentionally or not. From then on, for a practice to be labeled “discriminatory” in this broadened sense of the word, and therefore unlawful, it was enough that it helped perpetuate the exclusion of groups that were initially excluded by discrimination narrowly conceived. A selection criterion would have to be discarded if its use had an adverse impact on the members of a group previously subject to intentional and direct discrimination and if there was no persuasive relationship between that criterion and the employee’s ensuing performance on the job.21 In this respect the Court’s standing does have some intuitive appeal. Insofar as the employer’s defense is based on the assertion that using the test under challenge actually helps improve productivity, it may seem reasonable to make the judicial determination contingent on the empirical validity of that statement. Thus, if there is indeed a correlation between the applicants’ scores on a hiring test and the quality of their future job performance, and if this correlation is high enough for the test to be justified as “[a matter] of business necessity,”22 respect for the employer’s freedom will take precedence over the goal of eradicating the effects of past discrimination. However, if the predictive power of the test is not that compelling, antidiscrimination considerations will prevail. Here, the Court’s decision is essentially pragmatic: if upon examination the selection procedure under challenge proves defective according to its own standard of validity, then it ought to be discarded. By emphasizing the shortcomings of the practice under scrutiny in relation

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to the requirements of instrumental rationality, the Court is in a position to minimize the extent of its own departure from congressional intent and deny that invalidating the test has any antimeritocratic component, since the problem supposedly lies in the inadequacy of that test as a means of promoting the company’s legitimate goal of hiring the most qualified applicants. The Griggs decision is even more remarkable in view of the other, less far-reaching option that the Court could have selected to secure just the same result. For given the circumstances of the case, it did not have to jettison the standard paradigm of discrimination as an intentional behavior. Because of the southern (North Carolina) setting and since Duke Power Company had instituted the test under challenge on the very day that the 1964 Civil Rights Act came into effect, after a long period of explicit discrimination and in a context where, because of the damaging effects of school segregation, its adverse impact on blacks was obviously predictable,23 it would have been defensible for judges to infer a discriminatory purpose on the part of the employer. They could then have struck down the practice under examination as an indirect type of intentional discrimination, without rejecting intentionality as a constitutive feature of “discrimination.” That solution seemed all the more attractive as there were a number of putative precedents that one could have relied on. One example of such facially color-blind measures nonetheless designed to have negative effects on blacks was the legislation passed in several Southern states after the Civil War in order to deter the newly emancipated slaves from leaving the service of their former owners. In Georgia, Florida, and Louisiana, for instance, these “vagrancy laws” defined as “vagrant” virtually any unemployed adult and, quite tellingly, punished that offense with a sentence of one to twenty years of forced labor, to be performed at the service of a private person.24 Just as plainly discriminatory was the notorious “Grandfather Clause” introduced in Oklahoma in 1910 and then extended throughout the South, which made voting rights conditional on passing a literacy test except for persons who were “on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation, [or who were] lineal descendant[s] of such person[s].”25 Similarly, during the New Deal era, without the discriminatory purpose being as obvious as in the two previous examples, it is still striking that the two main occupations left out by the national unemployment insurance set up by the Social Security Act of 1935, domestic servants and farm workers, were precisely those where blacks were most overrepresented.26 Finally, just two years before Griggs,

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the Gaston County v. United States decision,27 where the Supreme Court had confirmed the invalidation of literacy tests whether or not those were fairly administered, could also be construed as reflecting the Court’s acknowledgment of the underlying discriminatory intent at work.28 The Court’s decision in Griggs not to rely on an analogy with these historical and legal precedents thus requires an explanation, all the more so as the consequences of the ruling were predictably far-reaching. Indeed, even without positing the existence of cultural differences between ethnoracially defined groups that would have an impact on their hiring test scores, it is virtually impossible for any allocative procedure to work in a perfectly “neutral” way. Unless it is unrealistically assumed that all the individuals to whom the procedure applies have identical talents, or that some individuals are superior to others in every respect, any criterion will provide a comparative advantage to some to the detriment of others.29 This is also true when one considers groups instead of individuals. As a consequence, expanding the notion of “discrimination” so as to include indirect discrimination (regardless of intentionality), which as a practical matter means making those responsible for the allocation of certain goods also responsible for their ethnoracial distribution, even though that distribution is mostly determined by factors beyond their control, by necessity entailed a major (although at first dimly perceived) revolution in hiring practices.30 To begin with, this amounted to abandoning the hitherto prevailing conception of antidiscrimination law as an instrument for purifying the employer’s decisional process. While previously the statistical underrepresentation of blacks in the workforce could at most be viewed as the symptom of an anomaly of some kind, thus leading to a careful examination of the recruitment process so as to possibly detect some actual evidence of noncompliance with Title VII of the Civil Rights Act that would involve intentional, race-based discrimination, under Griggs, the “discriminatory” nature of a practice could now be immediately and exclusively inferred from the results arising from it. An investigation designed to uncover the employer’s motives had become unnecessary. The existence of a statistical imbalance in the ethnoracial distribution of a company’s workforce as a result of that company’s hiring practices was no longer viewed as merely indicating some possible infringement of existing antidiscrimination law that would lie in a decision to disadvantage members of a given racial group, the existence of which would have to be established independently: it constituted this infringement in its own right, and thus called for remedial action. Yet, the theory of indirect discrimination embraced in Griggs also works as a kind of subterfuge, insofar as expanding the notion of

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“discrimination” basically amounts to abolishing the analytical distinction between antidiscrimination and affirmative action. This is so because, as a practical matter, prohibiting indirect and presumably unintentional discrimination requires the selection of a limited number of reference groups within which all individuals will enjoy a specific kind of protection not available to members of other conceivable groups. Given that many collectives may aspire to benefit from such protection, a criterion will be needed for demarcating the subset of those who will be insulated as a matter of law from the disparate impact that current hiring practices might have on their members. What is this criterion, however, if not the fact of belonging to a group that was targeted for official, intentional discrimination in the past? In case this observation is not obvious enough, let us consider the following point. As a general matter, since there is no institutional device for equalizing the cost of affirmative action among those upon whom it inflicts some kind of penalty, that policy itself may well have a disparate impact on some identifiable subgroups within the larger group of “nonbeneficiaries.” In that case, it would seem logical to set up another compensatory mechanism specifically geared toward reducing the inequality produced by that new “discrimination,” however indirect and unintentional it may be. Strikingly enough, however, the issue was raised only once, and precisely when the group specifically disadvantaged by affirmative action had also suffered widespread intentional discrimination in the past: the population involved was Asian American students, whose stronger academic credentials made them particularly vulnerable to any departure from a purely meritocratic rule in university admissions.31 This can be seen as an indirect confirmation of the fact that the Griggs theory of discrimination as disparate impact only applies to the members of groups formerly discriminated against in the pre-1971 meaning of the word “discrimination.”32 Thus, the occurrence of past injustice, although it does not in itself justify affirmative action (as established in chapter one), partly explains, one the one hand, the race-based discrepancy in hiring test scores, and on the other hand, the willingness of state authorities to prevent that discrepancy from reproducing a racial hierarchy––even though they do not seriously pay attention to the disparate impact that such tests may well have on members of groups defined by a criterion other than race or sex. Yet, if the notion of discrimination is stretched to the point of including all practices that turn out to exclude a disproportionate number of blacks, Hispanics or women, doesn’t the distinction between antidiscrimination and affirmative action become quite tenuous? Insofar as Griggs has the effect of insulating some groups of applicants from the negative

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consequences that normal hiring practices would otherwise have upon them, both “affirmative action” and the enforcement of Title VII of the 1964 Civil Rights Act do establish a difference of treatment for the benefit of collectivities formerly confronted with various forms of legal discrimination. The distinction lies only in the social meaning ascribed to that difference of treatment. At the beginning of the 1970s, because the average black level of qualification was significantly lower than the white one as a result of school segregation,33 there were a host of cases where any color-blind recruitment procedure would have proved discriminatory under the Griggs principle. Therefore, an employer determined to reach a “nondiscriminatory” result had no other choice but to differentiate his requirements somehow according to the race of the applicant—a differentiation that could be made more or less explicit. “Affirmative action” is the name usually given to that kind of differentiation, when it is openly acknowledged as such.34 In contrast, the Griggs theory of discrimination conceals the specificity of the treatment awarded to some, but not all, minorities. Since a large number of hiring practices, presumably devoid of any discriminatory intent, now appear as being “discriminatory in operation,”35 a corrective action of some kind surely is in order. However, instead of being conceptualized as an exception made on behalf of certain groups currently unable for one reason or another to cope with the “normal” conditions of the labor market, that corrective action can then be justified by appealing to the supposedly consensual goal of fighting “discrimination” in accordance with the 1964 Civil Rights Act. How could anyone possibly oppose the battle against discrimination without losing all political credibility? Therefore, the fact of labeling all hiring practices responsible for any significant departure from a standard of racial proportionality in the distribution of the workforce as “discrimination” allowed judges to avoid having both to acknowledge and to justify the special treatment of members of underrepresented groups that followed. The element of discontinuity between the Civil Rights Act of 1964 and the introduction of affirmative action policies could thus be obliterated—an obliteration whose deliberate nature is confirmed in another Title VII case, United Steelworkers v. Weber (1979). United Steelworkers v. Weber The increase in the number of discrimination lawsuits sparked by the Griggs decision and its progeny did put many companies in an awkward position.36 Whether they decided not to modify hiring procedures

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that had a disparate impact on minority members or to more or less discreetly grant the latter a preference, so as to remedy their statistical underrepresentation in the workforce in order to avoid exposing themselves to charges of “discrimination” in the post-1971 meaning of the word, there were more individuals—either blacks or whites disadvantaged by affirmative action programs—who could now bring lawsuits against them on the basis of Title VII of the Civil Rights Act. The Griggs decision thus implicitly invited employers to set up preferential treatment policies that might nonetheless be struck down as a violation of the 1964 legislation. Because of this barely hidden contradiction between the incentives created by the extension of the notion of “discrimination” and the ban on race-based affirmative action arguably incorporated in Title VII,37 some clarification was in order. This is where the United Steelworkers v. Weber decision comes in. As in Griggs, the dispute focused on the conditions under which employees could be eligible for participating in a training program, a program set up by Kaiser Aluminium & Chemical Corporation, following an agreement reached with the United Steelworkers trade union. The agreement held that 50 percent of the openings would be set aside for blacks until the percentage of black workers in the plant under consideration became approximately identical to the proportion of blacks in the local labor force. Then, within each of the two racial groups, seniority would continue to determine access to the training program. In the case of the plant in Gramercy, Louisiana, where blacks made up fewer than 2 percent of the skilled workers even though they made up 39 percent of the local workforce, this 50-percent quota worked to the detriment of a white worker, Brian Weber, who was denied access to the program although he had more seniority than all the black workers who were then admitted.38 Weber filed a complaint for discrimination under section 703 (d) of Title VII of the 1964 Civil Rights Act, which holds that it is unlawful for any employer, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs to discriminate against any individual because of his race, color, religion, sex, or national origin in admission to, or employment in, any program established to provide apprenticeship or other training.39 At the end of the day, in another unexpected ruling, the Supreme Court overturned the decisions of the lower courts in favor of Weber, thus paving

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the way for companies to set up presumably “voluntary” racial quotas. To be allowed to do that, the employer no longer had to cast such quotas as remedies designed to correct the effects of the intentional discrimination in which he would have to admit having indulged in the past, a discrimination whose acknowledged existence might well trigger complaints by its putative victims. It was now enough for him to point to the persistence of a “conspicuous imbalance” in the ethnoracial distribution of the workforce.40 The ruling thus helped clarify the connection between the transformation of the concept of “discrimination” performed in Griggs and affirmative action strictly speaking, by providing specific information as to the hitherto mysterious nature of the remedial measures that could be set up to correct the observed “imbalance” and by allowing employers to act in this respect even in the absence of a court injunction to do so. As emphasized in Justice Brennan’s majority opinion, it would not make much sense to prohibit the employers likely to be found guilty of discrimination in violation of Title VII of the Civil Rights Act from anticipating so as to enact on their own the kind of measures that would probably be imposed on them by a court order if indeed such were the case.41 Thus, the Court should simply defer to the freedom of the employer supposedly materialized in his decision to set up an affirmative action program, independently of any outside pressure to this effect.42 Insofar as the Civil Rights Act was designed to improve blacks’ economic predicament while reflecting, in its section 703 ( j),43 congressional concerns about excessive government interference in business decisions, courts would be detracting from congressional intent if they decided to prohibit private actors from freely deciding to take steps in order to promote this group’s advancement: It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had “been excluded from the American dream for so long,” . . . [quote omitted] constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.44 Yet, the irony rather lies in the Court’s characterization of the affirmative action program under challenge. While it might have been necessary for inducing Justice Potter Stewart to change sides and support affirmative action whereas just one year earlier he had voted against the program challenged in Regents of the University of California v. Bakke, this liberal rhetoric seems disingenuous, given the circumstances of the case.

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For one thing, the mere fact that the employer was on the verge of being sued under Title VII of the Civil Rights Act does at least suggest that breaking down “traditional patterns of racial segregation and hierarchy” was not his main concern. In all likelihood, the affirmative action program was there only as a preventive device designed to counter some anticipated charges of “discrimination” that the firm had been made more vulnerable to as a result of the Griggs decision.45 For another, the impact of that decision was increased by the additional pressure brought by the OFCC on those federal contractors whose tests had a discriminatory effect on minority members to set up “affirmative action” programs as a less costly substitute for the design of new, disparate impact-free procedures.46 Justice Brennan’s insistence on respect for the employer’s freedom and the importance of governmental restraint is thus unconvincing and arguably disingenuous.47 By pretending not to see any connection between the Griggs decision and the quota challenged in Weber, the Court simply conceals the practical implications of its own case law as far as employers are concerned.48 Connecticut v. Teal Three years later, in Connecticut v. Teal,49 the Supreme Court, in a more subtle way, again showed its reluctance to endorse any initiative that would increase the visibility of the affirmative action policy that Griggs indirectly imposed on employers. The issue at stake was whether a test that had a disparate impact on “protected classes” could nonetheless be used under Title VII of the Civil Rights Act provided that the recruitment process as a whole did not have such a disparate impact. Was this “bottom line approach” under which employers were left free to work out the best way for them to hire a minimal percentage of minority members at the end of the day—with the government agencies involved agreeing not to identify as “discriminatory” any one of their recruitment practices considered in isolation—to be considered admissible under existing antidiscrimination law? The Supreme Court’s answer, delivered in an opinion by Justice Brennan, was negative, for reasons arguably connected with the interpretative framework outlined above. Indeed, while the bottom line approach had the advantage of raising the overall qualification level of the black employees (assuming the test to be retained despite its disparate impact on them served as a good predictor of job performance), it also had one major drawback: that of drawing attention to the preferential

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treatment of some kind that would have to be granted to minority applicants at other stages of the hiring process in order to make up for the test’s disparate impact. If employers were allowed to openly juxtapose some allegedly “meritocratic” procedure designed to hire the most “qualified” applicants (with test scores considered as a proxy for qualification) and efforts to increase the proportion of women and minority members in the workforce by unacknowledged means, that juxtaposition could only underscore the tension between these two distinct and in part contradictory goals, in contrast with the rosier picture that the Supreme Court had attempted to paint in Griggs. That the Court eventually rejected the bottom line approach is therefore not really surprising. Doing otherwise would have meant running the risk of stigmatizing minority employees by making explicit that their presence in the workforce resulted from some specific, externally imposed policy that the employer was forced to set up to that effect, a policy partly disconnected from the standard (and commonly acknowledged as legitimate) goal of productivity maximization.50

Understanding the Increasing Inclusiveness of the Antidiscrimination Paradigm The extension of the concept of discrimination (Griggs), the effects of which the Supreme Court attempted to conceal to a certain extent (Weber), even though it also made clear that the disparate impact theory applied at every step of the recruitment process (Teal), has the effect of blurring the distinction between the two broad objectives that supporters of racial equality generally want to promote: on the one hand, the economic and occupational advancement of black Americans; on the other hand, the eradication of race-based differential treatment, as enshrined in the 1964 Civil Rights Act. Of course, these two goals are not necessarily incompatible, and it is theoretically possible that a strictly “color-blind” decision process should lead to a relative improvement in black employment outcomes. Yet, it does not have to, and there might well be a trade-off between those two objectives. So much was intimated in Griggs, where the Supreme Court actually decided to prioritize an outcome-oriented approach of antidiscrimination. At the same time, the Court’s efforts to minimize the departure from the standard antidiscrimination paradigm thus introduced are almost as noticeable as that departure itself. For instance, the main rationale for rejecting as incompatible with Title VII formally neutral tests with a disparate impact on minorities was that they would perpetuate a state of

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affairs conceived as resulting from prior (legal) discrimination against blacks (most of all in education), with that discrimination itself being obviously intentional. Thus, the ultimate basis for striking down as discriminatory a given practice remained the occurrence, at some point, of an intrinsically inadmissible motive within the process generating the racial imbalance that this practice helped maintain. And expanding the notion of “discrimination” so that it includes indirect and presumably unintentional discrimination—an expansion not explicitly acknowledged as such—is just the most striking illustration of a broader endeavor to bridge the gap between the equality of results between racial groups now tacitly endorsed as a pragmatic reference point and the more legitimate principle of equal treatment of individuals enshrined in the 1964 Civil Rights Act.51 There are several ways of making sense of this systematic attempt to cast the new conception of antidiscrimination as a natural extension of the old one. To start with, presenting the prohibition on indirect, unintentional discrimination as just the next logical step in the battle against direct, intentional discrimination simplifies the justification issue to a considerable extent. Abandoning the previous, intent-centered antidiscrimination paradigm altogether would have required providing an argument about the value on behalf of which one ought to pursue the racial integration of schools and workplaces, including in “colorconscious” ways. In contrast, to present Griggs as simply reflecting the implementation of the standard paradigm over an extended timeframe allowed one to abstain from tackling this rather complicated task: the causal imputation leading one to conceive the disparate impact that tests presently had on blacks as the end result of the intentional, state-imposed discrimination previously suffered by them—to be remedied by corrective measures of some kind—neutralized the uncertainty as to the definition of the ethical and legal basis of any kind of racial proportionalism whose purpose would be openly prospective.52 Yet, the main reason why measures aimed at promoting racial equality by increasing black employment had to be predicated upon findings of past discrimination is that they were being set up and implemented by executive agencies, and, to a certain extent, by the judiciary, that is, by institutions designed only to enforce the law as it is. If their prescriptions were to withstand charges of illegitimate intrusion into the legislative domain, they had to be cast as a remedy for the infringement of a law already passed by Congress, a law that could not be anything but the 1964 Civil Rights Act. The only solution, then, was to characterize the situation one wished to alter, that is, the underrepresentation of

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blacks in the workforce of a given firm, as the result of “discrimination.” And since there was a growing number of cases where that underrepresentation obviously could not be ascribed to intentional discrimination by the employer, but originated instead in structural factors beyond the control of the agencies or the courts (such as the persistence of massive inequalities between high schools, high levels of de facto residential segregation, or even the alleged “disintegration” of the black family),53 the notion of “discrimination” itself had to be substantially extended. In the words of legal scholar and former EEOC adviser Alfred Blumrosen, If we consider as discriminatory any institutional decision that has an adverse impact on minority members in a field open to regulation, the solution lies within our immediate grasp. Only then will we be able to gain control over our own destiny.54 Since EEOC and OFCC officials are not particularly inclined to proclaim their impotence, the only option remaining at their disposal was to expand the concept of discrimination so as to make it apply to all practices which turn out to exclude a disproportionate number of minority group members, whether intentionally or not. Yet, those legitimacy constraints specific to the civil rights bureaucracy would not have had such sweeping unintended consequences but for the weakness of the legislative control exerted upon them. All things considered, the evolution toward a disparate impact theory of discrimination and the emergence of affirmative action itself can thus be partly understood as some momentous side effects of the structural bureaucratization and juridizialisation of the American political system.55 “Post-Affirmative Action” Strategies: How Different Are They? Unlike the evolution described above, the much-discussed project of replacing race-based affirmative action with preferences based on social and economic disadvantage has not been endorsed by federal or state authorities so far. To a large extent, it is yet another instance of the logic of concealment analyzed above. According to its many supporters, “class-based” affirmative action would have the significant advantage of neutralizing the arguments against the policy that are actually aimed at the race-based categorization underlying it, even though blacks would still stand to benefit from this allocation scheme insofar as they remain overrepresented among the

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underprivileged. Yet, only those blacks whose present condition would reflect the lingering effects of past discrimination would be in a position to draw advantage from this new kind of preferential treatment.56 In acknowledging both the growing heterogeneity of the black population underscored by William Julius Wilson and others57 and the scarcity of the political capital available for launching initiatives designed to help its members, class-based affirmative action would thus help redirect redistribution in favor of the worst-off blacks. From a political point of view, this move may well broaden the coalition behind affirmative action so that it would include more working-class whites. From a judicial point of view, since poverty, unlike race, is not a “suspect” classification under the Fourteenth Amendment’s Equal Protection Clause,58 the constitutional impediment would in all likelihood disappear. Yet, the choice of how exactly to assess the degree of social and economic disadvantage affecting different individuals is all but self-evident. As far as higher education is concerned, for instance, if one chose to consider only a single, simple proxy for class disadvantage such as income, replacing race-based affirmative action with class-based affirmative action implemented on a similar scale would lead to a dramatic decrease in the proportion of black students. This is so since, on the one hand, blacks would then be only a minority of the individuals eligible for this new kind of preferential treatment; on the other hand, as far as SAT and LSAT scores are concerned, if one discounts the independent impact of income by considering only the subset of students from households whose income stands below a given threshold, there remains a sizeable gap between white and black applicants.59 Most black applicants therefore would not benefit from this kind of class-based affirmative action.60 This is why supporters of this policy shift instead tend to consider the elaboration of some complex proxy for social and economic disadvantage, so as to deliberately include all the parameters in relation to which blacks are at a particular disadvantage: income, but also wealth, parents’ education, neighborhood, and so on. Thus, class-based affirmative action would work as a tighter functional substitute for race-based affirmative action.61 However, the “color-blindness” of the whole allocative scheme would be illusory, since the applicants’ race, while no longer taken into account as a selection criterion, would remain a key factor in the preliminary process of defining the proxy for social and economic disadvantage to be used. Only the immediate visibility of race consciousness would be reduced as a result. The current interest in “class-based” affirmative action cannot be understood independently of its (paradoxically transparent) euphemizing function.62

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Finally, the legal requirement to end affirmative action programs in public institutions of higher education, in effect today in 4 of the 50 American States,63 has further enhanced the appeal of subterfuges of this kind, which deliberately modulate the value assigned to the applicants’ individual features depending on the distribution of such features among the different ethnoracial groups. For instance, in addition to devising increasingly sophisticated indicators of economic disadvantage within the frame of “class-based” affirmative action policies (such as the percentage by which the applicant’s family stands above or below the poverty line, however defined [University of Texas],64 or the proportion of underprivileged individuals among the students of her high school [University of Washington]),65 the university administrators’ determination to counter the drop in the number of black and Hispanic students following the elimination of race-based affirmative action programs has prompted them to give more weight to essays allegedly reflecting the applicant’s “cultural awareness” and/or his capacity to “overcom[e] personal adversity”—two barely disguised proxies for minority membership.66 In some cases it has also led them to downplay the importance of conventional criteria of merit such as grades and scores on standardized tests in order to reduce their disparate impact on blacks and Hispanics (an option explored by the Berkeley Boalt School of Law, for instance).67 Should affirmative action programs eventually be terminated by the Supreme Court on a national level, there is no doubt that such strategies of substitution would proliferate. Concealment as a Condition of the Constitutional Admissibility of Race-Based Affirmative Action Paradoxically enough, it is within the Supreme Court’s case law that one finds the most telling examples of this strategic concealment of both the antimeritocratic dimension of affirmative action and the degree to which the policy takes race into account. An analysis of the decisions City of Richmond v. J. A. Croson Co., Shaw v. Reno, and Regents of the University of California v. Bakke, whose importance is generally acknowledged independently of the interpretative framework that I suggest, supports this claim, or so I shall argue. City of Richmond v. J. A. Croson Co. In this case the issue at stake was whether the “minority set-asides,”68 whose constitutionality under the Equal Protection Clause the Supreme

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Court had confirmed in 1980 for those programs set up by Congress under the Public Works Employment Act of 1977,69 were also constitutional when they had been instituted by an authority—state or local— other than the federal government.70 The decision’s potential impact was substantial, since set-asides of this kind had been established in 36 states and over 200 cities between 1977 and 1989.71 As it turned out, the Court struck down the affirmative action program implemented in Richmond, Virginia (the capital of the former Confederation) that set aside 30 percent of public works contracts for “minority” business enterprises, under the notion that any race-based classification by state or local—as opposed to federal—authorities had to pass the “strict scrutiny” test, regardless of which racial group would stand to benefit, and that the program under consideration failed it.72 For an affirmative action plan in public contracting to be constitutionally admissible, the individual beneficiaries should have personally suffered from some intentional past discrimination undertaken either by the government body now responsible for setting up the program or by private actors,73 and the policy should be “narrowly tailored” to that remedial end. In this case the second condition was not met, since among the potential affirmative action beneficiaries some minorities were included who were virtually absent from Richmond and anyway had not been targeted for discrimination locally (the “Eskimos and Aleuts,” for instance).74 Yet, beyond the outcome of the case itself, the reasoning in Justice O’Connor’s majority opinion has some rather obscure and seemingly contradictory parts that deserve to be more closely examined.75 At first sight, insofar as O’Connor insists that the affirmative action program under challenge must be “narrowly tailored” to the promotion of a “compelling state interest” identified as the redress of past injustice, she seems to criticize the selection of the program’s beneficiaries as being overinclusive: There is absolutely no evidence of past discrimination [by local authorities] against Spanish-speaking, Oriental, Indian, Eskimo, or Aleut persons in any aspect of the Richmond construction industry. It may well be that Richmond has never had an Aleut or Eskimo citizen. The random inclusion of racial groups that, as a practical matter, may never have suffered from discrimination in the construction industry in Richmond suggests that perhaps the city’s purpose was not in fact to remedy past discrimination.76 Yet, a little further on, O’Connor also castigates the city for not having seriously explored color-blind alternatives to the minority set-aside

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that might have involved, for instance, offering “training and financial aid for disadvantaged entrepreneurs of all races.”77 But this second argument is hardly compatible with the first one. If the intended goal is indeed compensation for the injustice experienced by victims of past discrimination on the basis of race in public contracting, a color-blind strategy seems counterintuitive and would obviously be even less likely to meet the means-end “narrow tailoring” requirement since its beneficiaries would probably include more white contractors than the hypothetical “Eskimos and Aleuts” mentioned above. How can a remedy for past discrimination on the basis of race be narrowly tailored, if it does not take race into account in the identification of its potential beneficiaries? One way out of this conundrum would be to interpret O’Connor’s opinion as making an implicit distinction between two possibilities: either the goal is indeed to provide some compensation for the harm suffered as a result of past discrimination, in which case the necessarily “colorconscious” criteria for identifying the potential beneficiaries of the program would have to be more restrictive so that, as a practical matter, only blacks are included; or affirmative action is nothing more than a redistributive policy intended to reduce economic inequalities, in which case it ought to comply with the principle of color blindness. Yet, this disjunctive approach is not what O’Connor has in mind. Paradoxically enough, what she advocates is to “us[e] alternative, race-neutral means to increase minority participation in city contracting.”78 And Justice Antonin Scalia in his concurring opinion makes a similar point in a more explicit way: A State can, of course, act “to undo the effects of past discrimination” in many permissible ways that do not involve classification by race. In the particular field of state contracting, for example, it may adopt a preference for small businesses, or even for new businesses—which would make it easier for those previously excluded by discrimination to enter the field. Such programs may well have racially disproportionate impact, but they are not based on race.”79 In a nutshell, the message thereby conveyed by the Court to local authorities is that as long as they remain discreet enough, they are free to enact measures that are superficially color-blind yet deliberately favorable to members of “minorities.” The Supreme Court thus endorses intentional “discrimination” in favor of formerly discriminated against groups provided it remains indirect.80 How can Supreme Court justices like O’Connor and Scalia at the same time strike down an affirmative action program on account of its

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being based on the intrinsically pernicious category of race and encourage local authorities to consider other means of reaching an obviously race-conscious goal (remedying the effects of past discrimination on the basis of race in the field of public contracting)? As a matter of fact, it is hardly possible to make sense of their simultaneous endorsement of these two seemingly antithetical stances without positing a distinction between two interrelated discursive spheres: on the one hand, there is the sphere of insiders-oriented legal discourse, within which a professional elite is free to openly refer to the metagoal of reducing the degree of racial identification in American society and to suggest optimal methods to that end; on the other hand, there is the sphere of discourse oriented toward the general public, that is, directed at those components of the social universe whose representations of race affirmative action is ultimately designed to transform, a sphere in which some greater opacity would be in order.81 It is indeed because the success of this transformation partly depends on its invisibility that concealment of race consciousness ultimately stands as the condition of the legal validity of an affirmative action program. Of this paradoxical outcome another Supreme Court decision, Shaw v. Reno, in which the majority opinion was again delivered by Justice O’Connor, offers some more explicit confirmation. Shaw v. Reno Every ten years, after each census, under the supervision of the attorney general, state governments reapportion voting districts so as to take into account the demographic shifts that occurred in the past decade. Accordingly, in 1990, North Carolina, where blacks made up approximately 20 percent of the voting-age population, created a new voting district with a black majority, in order to increase the likelihood of a black person being elected. Because blacks were very much scattered throughout the state, the shape of that district was extremely irregular. This led the local branch of the Republican Party to challenge the constitutionality of the reapportionment plan under the Equal Protection Clause. In the end, that plan was struck down by the Supreme Court in Shaw v. Reno.82 Shaw was a turning point in many respects. To start with, it broke with a long-standing tradition by virtue of which the Court abstained from ruling on the constitutionality of voting district apportionment schemes on the ground that the issue at stake was intrinsically political and could not be properly adjudicated, in the absence of “judicially discoverable and manageable standards.”83 The underlying idea was that, even setting aside the issue of race, it is simply impossible to come up with an intrinsically neutral and

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impartial procedure in comparison with which a given apportionment could plausibly be denounced as a “distortion”: whatever criteria operated in the redistricting process, a claim could always be made ex post facto that they worked to the advantage of some groups over others, to which other criteria would have proven more favorable. Any accusation of unfairness in redistricting must therefore point to the result of the election, not to the procedure involved, since there is no established baseline. As pointed out by political theorist Charles Beitz, “[I[f there is a general principle of qualitative fairness, it must specify the kind of outcomes that fairness requires.”84 Moreover, as far as racial redistricting is concerned, not only is there no commonly agreed-upon procedure with respect to which it would make sense to reject a given plan as an illegitimate deviation, but the very existence of a group whose members might be held to be objectively disadvantaged by such a procedure is far from self-evident, in contradistinction with the obvious zero-sum game dimension of affirmative action. In Shaw v. Reno the question of identifying exactly what kind of judicially cognizable harm, if any, the redistricting scheme under challenge inflicted upon the white plaintiffs was thus a tricky one, since those plaintiffs certainly had no right to be assigned to a district with a white majority.85 Besides, the very idea that including white citizens in a primarily black and Hispanic district would in and of itself cause them harm by reducing their potential influence on the outcome of the election did seem to imply that voting behavior was somehow determined by race, an assumption dismissed as a “stereotype” and heavily criticized in Justice O’Connor’s majority opinion as far as black voters are concerned.86 How is one to make sense of that embarrassing asymmetry? To avoid being confronted with that unsolvable problem, in her majority opinion O’Connor takes an entirely different road: she chooses to emphasize the “unsettling”87 resemblance between the methods used to create some of the “majority-minority” districts (those districts where a majority of voters belong to groups that are minorities at the national level) and the “egregious racial gerrymanders of the past,”88 and warns of the dangers inherent in the expressive or symbolic dimension of the procedure involved.89 Since the very idea of a “dilution” of these minorities’ voting power that redistricting could be made to remedy assumes that race is a key factor accounting for one’s behavior at the polls, a case can be made that the policy and its implications do run the risk of reinforcing existing and arguably harmful stereotypes by endowing them with the appearance of state endorsement. This is what O’Connor finds objectionable: North Carolina’s redistricting plan will “reinforce[s] the perception that members

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of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls,” even though such perceptions have usually been rejected by the Supreme Court “as impermissible racial stereotypes.”90 Of course, one may object that venturing to foresee the negative side effects of redistricting, such as the possible intensification of racial divisions in American society, as the majority opinion does here, exceeds the judiciary’s legitimate sphere of competence, and that assessing the potential effectiveness of a public policy as an instrument for the advancement of a political goal is something that legislators are much better equipped to do than judges. Instead of rushing to rule on a empirical issue fraught with uncertainty that should have been left for Congress and/or state legislative bodies to decide, in an example of that judicial overreach that most conservative opponents of affirmative action are prone to complain about when it is their ox that is gored,91 the Supreme Court might have been better advised to stick to its function of catalyzing, rather than preempting, public deliberation.92 In addition, even assuming this dire prediction to be accurate, that is, even if districting did ultimately have harmful effects on the state of race relations in American society, under the principle identified in the Supreme Court 1976 decision Washington v. Davis, this would not amount to a violation of the Equal Protection Clause as long as those negative consequences were not intentional—a condition that one may reasonably assume to be met in that case.93 Yet, one of the most interesting aspects of Shaw v. Reno lies in the criterion that O’Connor considers when deciding to strike down the North Carolina redistricting plan, a decision that is not grounded on her endorsing a general rule of color blindness in the field of electoral representation. For that criterion is actually the more or less unusual appearance of the resulting districts. It is ultimately the obvious disregard for “traditional districting principles such as compactness [and] contiguity,” and the fact that the geometrical shape of the district is “so highly irregular that, on its face, it rationally cannot be understood as [reflecting] anything other than an effort to ‘segregate voters’ on the basis of race” that account for the judgment of unconstitutionality.94 While it is not irrelevant, aesthetics is therefore not the heart of the matter: the problem is not irregularity per se but irregularity insofar as it testifies to the absence of “objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines.”95 At the same time, the claim that the district was delineated on the basis of race would not be made any less true by the fact that its shape would

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be less odd than in the North Carolina case. Race-based redistricting is different from “gerrymandering on racial lines” in name only. Thus, O’Connor’s argument simply amounts to a prescription for caution in the design of the means geared to achieve an increase in the number of black elected representatives: those means will be deemed constitutional provided the state remains in a position to disguise its prime purpose in a minimally credible way. In other words, it is indeed the visibility—not the fact—of taking race into account that triggers the judgment of unconstitutionality: “Reapportionment is one area in which appearances do matter.”96 Beyond the arbitrariness necessarily involved in identifying the “threshold of oddity” above which the districting would qualify as a violation of the Fourteenth Amendment, one is faced here with the same paradox as in Croson: the constitutionality of a policy designed to increase the representation of a racial minority in a given setting does seem to be negatively correlated with its degree of transparency. Yet, as Justice Byron White quips, “[G]iven two districts drawn on similar, race-based grounds, the one does not become more injurious than the other simply by virtue of being snake like.”97 And in order to defuse that powerful objection, the Supreme Court was led to reconsider the heavily criticized solution identified in Shaw v. Reno98 only two years later, which arguably reflects the awareness of a misstep. Thus, in Miller v. Johnson the Court eventually made clear that the irregular shape of a district was only one kind of evidence among others that the Equal Protection Clause may have been violated. As explained in Justice Anthony Kennedy’s majority opinion, Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines. The logical implication, as courts applying Shaw have recognized, is that parties may rely on evidence other than bizarreness to establish race-based districting.99 In short, “the plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing,

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a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations.100 Yet, this clarified and somewhat radicalized stance was embraced by the Supreme Court only as an afterthought, after it had made the mistake of suggesting a bit too openly that it might be willing to countenance certain infringements on the emerging principle of color blindness as long as those remained adequately concealed.

Regents of the University of California v. Bakke: Diversity as a Subterfuge The structural tendency to minimize the visibility of race-consciousness found in City of Richmond v. Croson and Shaw v. Reno is even more noticeable in another, earlier decision pertaining to the constitutional validity of affirmative action programs in higher education: Regents of the University of California v. Bakke. As described above, this is the decision where Justice Lewis Powell, whose opinion happened to be determinative of the Court’s ultimate position (as the eight remaining justices were evenly split between defenders and opponents of the program under challenge), justified affirmative action as a means of promoting “diversity.” The assumption was that there was a correlation between ethnoracial diversity and diversity of viewpoints. Insofar as the latter could be conceived as an asset with respect to the kind of collective excellence that universities were traditionally meant to foster, affirmative action would then be congruent with one of the most uncontroversial goals of higher education, in relation to which grades and test scores would only appear as one among many relevant elements to consider. Also, Powell believed that the universities ought to be left responsible for selecting the most appropriate means to achieve diversity and “provide that atmosphere which is most conducive to speculation, experiment and creation,”101 in line with the principle of “academic freedom”––whose value is otherwise acknowledged quite independently of equality considerations: Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.

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Mr. Justice Frankfurter summarized the “four essential freedoms” that constitute academic freedom: “. . . to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”102 In Powell’s view, each of these freedoms deserved protection from outside—and certainly from government—pressure, because they helped promote the advancement of knowledge and because “the Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritarian selection.’ ”103 This way of “reframing” litigation over a policy initially conceived as an instrument toward reducing race-based inequality into a freedom-ofexpression issue may look all the more surprising as the two previous decisions mentioned by Powell that granted a degree of constitutional legitimacy to the principle of academic freedom involved cases where the scope of that principle was much less expansive. Thus, in Sweezy v. New Hampshire, the Supreme Court had upheld the right of a University of New Hampshire professor to refuse to answer questions about the content of one of his seminars when interrogated during the course of an investigation undertaken by state officials. In Keyishian v. Board of Regents, the Court had struck down a New York law requiring university faculty members to swear under oath that they had never been affiliated with the Communist party. Both cases ended up reinforcing the protection of the freedom of speech of individuals guaranteed by the First Amendment. In Bakke, however, it was the first time the notion of academic freedom was used to protect, not the rights of individuals working within an academic environment, but the discretion exercised by the academic institution itself. In a way not unlike what would happen the following year in the Weber case, both Powell’s opinion and that of Justice Blackmun thus conveyed the image of a court eager not to step out of its legitimate domain and therefore deferring to the judgment of professionals in matters of higher education, a judgment that the justices would not be in a position to second-guess given their lack of specific expertise in this field.104 This strategic move from racial equality to academic freedom is but one of the diversionary manoeuvres to be found in Powell’s opinion. Another one lies in his pretending to include race into a larger set of similarly relevant informational data. Thus, just as diversity in the applicants’ geographic origins and in their (academic and extra-academic) interests and talents is usually considered in admissions decisions, racial

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diversity should be viewed as one more component of the kind of global diversity traditionally favored by university officials: It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner’s argument that this is the only effective means of serving the interest of diversity is seriously flawed. . . . The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.105 Therefore, The race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.106 In short, race may enter the selection process provided it does not enjoy a dominant position; it must compete with other diversityenhancing features, the number of which is not limited in advance. Powell is less specific as to how exactly that competition ought to proceed. While he suggests that the affirmative action program must be “flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant, and to place them on the same footing for consideration,” at the end of the day, one should not “necessarily accord[ing] them the same weight.” “Indeed,” he argues, “the weight attributed to a particular quality may vary from year to year depending upon the ‘mix’ both of the student body and the applicants for the incoming class.”107 In other words, instead of viewing every new class of students as a conglomerate of individuals brought together without anyone considering the properties of the ensemble made up by their aggregation, ideally each admission decision should be able to take into account all the other ones, in order for the final product of their combination to present some specific features held to be desirable ex ante. Since the entity within which the degree of diversity should be the highest possible, other things being equal, is the student population as a whole, the

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desirability of each personal attribute at the microdecisional level is bound to fluctuate endlessly, according to the relative scarcity of that trait and to the “social added value” that it would thus be able to bring.108 In this respect, race would be treated just as all the other distinctive features already taken into account by admissions committees beyond applicants’ test scores and past academic performance. Affirmative action would then stand as just one more marginal deviation from conventional measures of merit that never enjoyed a monopoly anyway.109 The legitimization of that policy thus proceeds through its reinsertion into a preexisting tradition by which university officials enjoy a substantial amount of discretionary power to select members of the student body according to the requirements of diversity promotion. The notion of diversity is simply expanded to include race among its constitutive elements, as stated by the president of Harvard College quite explicitly, in an amicus curiae brief quoted in Powell’s opinion: The belief that diversity adds an essential ingredient to the educational process has long been a tenet of Harvard college admissions. Fifteen or twenty years ago, however, diversity meant students from California, New York, and Massachusetts; . . . violinists, painters and football players . . . In recent years, Harvard College has expanded the concept of diversity to include students from disadvantaged . . . ethnic and racial groups. Harvard College now recruits not only Californians or Louisianans but also blacks and Chicanos.”110 Here, conceiving of diversity as a multidimensional good and race as just one of its dimensions allows for a trivialization of affirmative action, which may reduce the risk that its race-conscious component should actually contribute further to stigmatize its intended beneficiaries, in line with the dissimulation requirement outlined above. Yet, Powell’s attempt to substitute the promotion of diversity for the reduction of race-based inequalities as the ultimate goal of affirmative action policies is jeopardized by the disparate impact of that substitution itself on some “overrepresented” minorities, a fact which may then lead to new, plausible charges of indirect discrimination, whether intentional or incidental. The problem is all the less negligible as there is at least one instance where this kind of indirect discrimination was indeed intentional. The victims were American Jews during the interwar years, whose dramatic progression within the population of students attending Ivy League

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universities soon became a matter of concern. At Harvard, their share had almost quadrupled between 1900 and 1925, going up from 7 percent to 27.6 percent.111 At Yale, it had gone up from 2 percent in 1903 to 13 percent in 1925, despite the fact that Jews then made up only 5.5 percent of the population of Connecticut.112 Similarly, “in 1918, 50 percent of those students admitted to New York University and 40 percent of those admitted to Columbia were Jewish, although Jews made up only 13 percent of the state’s population.”113 As a response, university officials, while generally denying that they were anti-Semitic—and sometimes even claiming they were anxious to reduce the anti-Semitism that allegedly increased together with the proportion of Jews present in a given setting114—enacted a set of measures designed to reverse this unwelcome trend. Specifically, to avoid the protests raised by the explicit quotas that Harvard had set up in 1923, other Ivy League universities like Yale, Columbia, and Dartmouth opted instead for subterfuges of various kinds. One was the preferential treatment of children of alumni (who were then almost all of Anglo-Saxon and Protestant extraction), purportedly with a view to fostering an “intergenerational community.”115 Another was the drop in financial aid, a change made with the knowledge that Jews were overrepresented among those applicants in need of such assistance.116 Yet another, admittedly of a cruder variety, consisted in the university’s pretending to value some immaterial individual property such as “character,” a property not necessarily reflected in the applicants’ academic records and of which Jews would then be found to be lacking, as if coincidentally.117 Those are examples of what Jon Elster calls “substitution strategies,” namely strategies by which a procedure that is facially and formally impartial is chosen precisely because its (seemingly) secondary effects make it a functional equivalent of a discrimination that at least part of the public would likely consider as illegitimate, were it not so disguised. In other words, what is presented as a by-product of existing admission practices—the exclusion of a great number of Jews—turns out, upon closer inspection, to be the very raison d’être of such practices.118 The goal here is to maximize the overlap between the effects of the two allocation criteria, the official and the officious, yet without reaching the point where the de facto equivalence between these two instruments would be so obvious that the discriminatory intent accounting for the choice of the official criterion would become impossible to deny.119 It is in this rather embarrassing context that the notion of “diversity” made its first appearance in the self-justifying rhetoric of university officials. Initially, the valorization of the geographical diversity of the student

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body was just another of these subterfuges meant to reduce the proportion of Jews, most of whom were already concentrated in the cities of the Northeast, without openly discriminating against them.120 The first occurrence of the argument later to be reemployed and expanded by Justice Powell in defense of affirmative action may thus count as a liability. What is more, the indirect yet intentional discrimination against prospective Jewish students of the interwar years did proceed through an expansion of the set of criteria deemed relevant for assessing applications beyond purely scholastic ones, in line with the “holistic” approach that Powell—and then a majority of the Supreme Court—would subsequently advocate.121 So much is reflected in the following quote by one of the officials responsible for devising Harvard’s admissions procedures in the 1920s, which provides a description of them strikingly similar to that of the affirmative action policy set up by that same institution half a century later, which Powell would then identify as a model for every university to follow: Traits of character which tend to prevent a boy from becoming a part of our great Fellowship of Harvard will be weighed. Among these traits may be extreme racial characteristics. Race is a part of the record. It is by no means the whole record . . . but . . . racial characteristics . . . will . . . be taken into consideration as a part of [an] individual’s characteristics under the test of character, personality and promise.122 And in a weak attempt to counter the expected objections of those who would see through this rather thin disguise, the author adds, [I]f there should result in fact any substantial change in the proportion of groups in the College following application of the test, this will be due, not to race discrimination or any quota system, but to the failure of particular individuals to possess as individuals those evidences of character, personality and promise which weighed with other evidences render them more fit than other individuals to receive all that Harvard has to offer. Of course there will be criticisms. It will be said that Harvard is discriminating on grounds of race. That will not be true.123 Despite this not so subtle endeavor to defuse potential charges of intentional discrimination (an endeavor later to be replicated in Bakke),124 the effect of these changes on the number of Jewish students admitted to

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Ivy League universities was of a magnitude that leaves no doubt as to their underlying purpose. At Yale, while Jews made up 13.3 percent of the student body in 1927, they were only 8.2 percent in 1934.125 At Columbia, their percentage declined from 44 percent in 1920 to 22 percent in 1930.126 The adamant opposition of most Jewish organizations to affirmative action—reflected in the many amicus curiae briefs127 that they have filed on behalf of individuals adversely affected by it—cannot be understood in isolation from this historical background. It has been further reinforced by the fact that Jewish (white) individuals now suffer from a bigger handicap than most other nonpreferred applicants because of the conjunction of race-based affirmative action, the valorization of geographical diversity, and their above-average academic credentials, which make them bear a disproportionate share of the cost of any departure from meritocracy as defined by grades and test scores.128 Another group that was intentionally discriminated against in the past and that the current emphasis on diversity as a dominant justification for affirmative action may well adversely affect is that of Asian Americans, whose dramatic rise in the economic and occupational hierarchy has led to their being often described as a “model minority.”129 This is so, since not only are they “overrepresented” in higher education as a whole,130 but that overrepresentation is even more pronounced in the top-tier institutions, not thanks to affirmative action, but simply because their grades and test scores are higher than those of any other ethnoracially defined group. In 1990, for instance, Asians made up 2.9 percent of the U.S. population, but 20 percent of the freshman class at Harvard, 15 percent at Yale, 24 percent at Stanford, 25 percent at the MIT and 26 percent at Berkeley.131 In 1994, they were 16.7 percent at Yale, 36 percent at Berkeley, and more than 43 percent at UCLA.132 And this overrepresentation would have been even more pronounced if affirmative action had not curtailed the number of Asian students, in an indirect and probably unintentional way. The reason why it did is straightforward: competition for admission to the top-tier universities is basically a zero-sum game; an increase in the admission rate of underrepresented minorities due to affirmative action necessarily entails a decrease in the admission rate of the other, nonpreferred groups.133 Besides, that decrease does not disadvantage all the nonpreferred groups to the same extent. Since Asians are the most “overrepresented” racial group in the absence of affirmative action, the “diversity” requirement in reference to which the policy is now justified has resulted in their admission rate being inferior not only to that of

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blacks and Hispanics, but also to the white admission rate, even though Asians have better grades and test scores than whites.134 For instance, in 1983, the admission rate of Asians to Harvard was 70 percent of the white admission rate (14 percent versus 20 percent). At Princeton, also in 1983, that ratio was 84 percent (16 percent versus 19 percent). At Stanford, between 1982 and 1985, it fluctuated between 65 and 70 percent. At Brown, in 1982, Asian applicants on average needed to score 152 points higher than whites on the SAT to gain admission. In this respect, there is plenty of empirical evidence.135 As a practical matter, this means that some Asian applicants, who would have been admitted had they been white, will not be admitted. Yet, in most cases, it is unlikely that Asians are intentionally discriminated against. It just turns out that with “diversity” being the only legitimate justification for affirmative action in higher education in the post-Bakke era, the policy is bound to have a disparate impact on members of those groups whose overrepresentation among elite university students on narrowly “meritocratic” grounds hinders the achievement of the appropriate ethnoracial “mix” that is now being sought. In short, the quest for diversity does have a cost, and this cost, paradoxically enough, is born by Asians more than by whites, even though Asians are a minority group that suffered from vicious, intentional discrimination in the past.136 Thereby the issue of racial equality again comes to the fore, although in an unexpected manner. Even beyond these structural limitations to Powell’s attempt at reframing the affirmative action issue away from the equality/discrimination paradigm, it is tempting to read his opinion as a kind of subterfuge, for the actual operation of the “flexible” affirmative action programs that he finds constitutionally admissible does not match his description of them. In most cases, though race is supposed to be but one among many objective features capable of contributing to diversity, it is monitored throughout the admissions process in a more systematic way than any other one. As applications are being handled by ad hoc committees, officials from the admissions office generally run statistical projections in order to anticipate the ethnoracial profile of the incoming class, and they readily make ex post facto adjustments if the likely proportion of black and Hispanic students falls beneath a certain threshold. To follow up on an example mentioned above, the percentage of violinists or painters among Harvard students—or even the percentage of individuals from a specific state—may undergo wild fluctuations without anyone noticing. This is not the case with blacks and Hispanics.137 The contrast is stark between the amount of attention that university officials devote to keeping track of the numbers of black and Hispanic

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students enrolled every year and their weaker commitment or outright indifference toward other kinds of diversity, which would probably contribute as much to that fruitful exchange of “experiences, outlooks, and ideas”138 celebrated by Justice Powell. This applies both to religious diversity139 and to political/ideological diversity, the latter being perhaps most directly related to the diversity of opinions presumably beneficial in the academic sphere. To a certain extent, the same holds true with respect to the diversity of national origins among students, a factor all the more unjustified to overlook under Powell’s supposedly “open” and individual-centered concept of diversity as most Hispanics and Asians tend to define themselves in reference to nationality rather than to their membership in ethnoracial groups.140 There are many axes of differentiation related to the opinions voiced by every individual student: race, religion, party identification, and place of residence, to name but a few. The notion of diversity alone does not provide any clue as to which of them should get more attention from university officials. The focus on race while other conceivable criteria for social classification are left aside does stand as an arbitrary restriction, at least within the diversity paradigm. In order to justify such an arguably discriminatory selection, one will need to rely on a political judgment. That selection may be grounded on the empirical fact that the presence of a significant number of black and Hispanic students remains the kind of diversity least likely to obtain as a side effect of regular admissions procedures. Yet, that argument would require emphasizing the special status of ethnoracial identity as opposed to the applicants’ other distinctive features, while Powell’s solution was precisely designed to avoid singling out race in that way and thus reduce the specificity of affirmative action as perceived by the American public. Actually, the goal of diversity promotion, far from being the main reason for either the development of affirmative action programs in university admissions or their ambiguous ratification in Bakke, emerged only as the product of some ex post facto rationalization largely ineffective aside from the function that it was meant to perform. This comes out quite clearly in at least one other Supreme Court decision, United States v. Virginia.141 The issue at stake there was whether the decision by the Virginia Military Institute (VMI) not to admit women qualified as a violation of the Equal Protection Clause. To justify the exclusion of female students, VMI had emphasized the public interest in preserving enough “diversity in educational approaches” by allowing those institutions of higher education geared toward providing a training for which the student body supposedly needed to remain homogeneous in some respect

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to proceed as they saw fit.142 Yet, this argument in favor of a pluralist conception of diversity allowing for the coexistence of both an intrainstitutional and an interinstitutional variety was eventually rejected by the Supreme Court under a reasoning that makes Powell’s opinion in Bakke look all the more peculiar in retrospect. Justice Ruth Bader Ginsburg’s majority opinion, while mentioning disparagingly “Virginia’s alleged pursuit of diversity,” states the following, It is not disputed that diversity among public educational institutions can serve the public good. But Virginia has not shown that VMI was established, or has been maintained, with a view to diversifying, by its categorical exclusion of women, educational opportunities within the State. In cases of this genre, our precedent instructs us that “benign” justifications proffered in defense of categorical exclusions will not be accepted automatically; a tenable justification must describe actual state purposes, not rationalizations for actions in fact differently grounded.143 Regardless of whether one agrees or not with Justice Ginsburg’s–– quite plausible—assessment of VMI’s sincerity in invoking the virtues of diversity, it is worth emphasizing that in some cases the Court is perfectly willing to dismiss the diversity argument as an excuse made up in order to disguise motives of a different kind. It is then all the more remarkable that Powell in Bakke did not see fit to question the role supposedly played by the belief in the value of diversity in the design of the Harvard affirmative action plan. Considering Bakke and U.S. v. Virginia together, a case can be made that underrepresented minority members do receive a special treatment of some kind, insofar as relying on the amorphous notion of diversity does not trigger the same degree of suspicion whether or not the argument is cast as a justification for policies from which they stand to benefit. Artfully concealed in Powell’s 1978 opinion, the existence of this double standard became unmistakable 18 years later. Besides, the current gap between the reality of university admissions practices and the “flexible” kind of affirmative action contemplated by Powell, far from being a pernicious product of post-1978 developments, could have been predicted by anyone even vaguely aware of the administrative constraints inherent in the admissions process. In addition to the inadequacy of Powell’s referring to an undergraduate affirmative action program in a case involving a professional school, the distinction that he insists on drawing between the Harvard plan and the Davis one rests on quite implausible assumptions as to how

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admissions committees actually operate, at least when the number of incoming applications exceeds a certain threshold. Even within a theoretically flexible affirmative action program, the average test scores of black and Hispanic applicants may well lag too far behind those of white and Asian applicants for a suitable degree of diversity to obtain if one is to consider race and ethnicity simply as “one factor among others.”144 Then admissions officers will find it hard to resist the temptation to set in advance, according to the level of “diversity” that they wish to attain, a cut-off score under which blacks and Hispanics may be given a second chance, but no white applicant will be considered further, in spite of his/her possibly extensive extra-academic talents that one might have been able to discover at a later stage in the admission process. Also, even if that temptation were to be successfully fought, and although the Harvard-type affirmative action program can be credited for enabling admissions officers to fine-tune the proportion of black and Hispanic students admitted each year according to the average degree of qualification of black and Hispanic applicants, for the white individual whose application is rejected as a consequence of minority membership being considered a “plus,” the difference between that presumably flexible program and a more rigid kind of affirmative action is hardly significant. Whether all white applicants are flatly excluded from a specific percentage of admission offers because of a minority quota or only suffer a handicap in the competition for each spot as a corollary of the bonus awarded to blacks and Hispanics, the white applicants’ probability of success will decline. The seriousness of the disadvantage imposed upon them depends on the extent of the handicap, not on the administrative procedures involved. In other words, “the point is not . . . that faculty administering a flexible system may covertly transform it into a quota plan. The point is rather that there is no difference, from the standpoint of individual rights, between the two systems at all.”145 Yet, as pointed out by Justices Brennan, White, Marshall, and Blackmun, the Harvard plan has the great advantage of “not mak[ing] public the extent of the preference and the precise workings of the system.146 Regardless of the flexibility of the affirmative action program under consideration, the heart of the matter is whether the value ascribed to minority membership in admission decisions is defined independently from the anticipated proportion of blacks and Hispanics in the student body.147 And to judge by Powell’s favorite example, the Harvard affirmative action plan that he included in his Bakke opinion and praised as a model for all universities to follow,148 the answer to that question is almost certainly negative. To be sure, while Harvard admitted that the

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benefits of “diversity” “[could] not be provided without some attention to numbers,”149 it denied having set quotas of any kind.150 Yet, the fact that the percentage of black undergraduate students remained practically unchanged in the 1973–1978 period (between 7 and 8 percent)151 might have enticed a fair-minded observer to wonder about the truth of that statement. This Powell was careful not to do. While he did mention the possibility that the difference between the two kinds of affirmative action programs that he was trying to distinguish should be entirely superficial, this did not lead him to question the relevance of that distinction: It has been suggested that an admissions program which considers race as only one factor is simply a subtle and more sophisticated— but no less effective—means of according racial preference than the Davis program. A facial intent to discriminate, however, is evident in petitioner’s preference program and not denied in this case. No such facial infirmity exists in an admissions program where race or ethnic background is simply one element—to be weighed fairly against other elements—in the selection process.152 And he adds, A court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary.153 The message could hardly be any more transparent: provided universities conceal the rigidity of their affirmative action programs carefully enough, they should be able to count on the courts’ benign passivity. The only real difference between the Harvard plan and the Davis plan is of an “administrative and symbolic” kind.154 The reason the Harvard plan is held to be constitutionally valid—and not the Davis one—lies in the lesser visibility of the extent to which the program takes race into account. The constitutionality of affirmative action policies in university admissions is made to depend upon the more or less indirect nature of the formal procedures involved. As for the underlying political judgment accounting for that paradoxical outcome, Powell makes the following allusion, buried in a footnote: There are also strong policy reasons that correspond to the constitutional distinction between petitioner’s preference program [the

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Davis plan] and one that assures a measure of competition among all applicants. Petitioner’s program will be viewed as inherently unfair by the public generally as well as by applicants for admission to state universities. Fairness in individual competition for opportunities, especially those provided by the State, is a widely cherished American ethic. . . . As Mr. Justice Frankfurter declared in another connection, “[j]ustice must satisfy the appearance of justice.”155 The solution eventually reached by Powell must be considered in this light. Despite its internal fallacies, the diversity argument, by taking the emphasis away from the anti-individualistic and antimeritocratic component of affirmative action, may have helped temporarily defuse an issue then rightly considered a deeply divisive one. Grounded as it is on a reasonable, empirically validated assessment of the substantial risks induced by visible forms of preferential treatment for blacks and Hispanics, it should be understood as a pragmatic compromise, a “politically correct solution” in the literal sense.156 Yet, it betokens an undoubtedly paradoxical phenomenon: the quasi-transparent incorporation into the Supreme Court case law of strategic considerations geared toward selecting the most appropriate means of overcoming racial divisions. The paradox here lies in the fact that in theory the Court’s legitimate sphere of competence is limited to stating and interpreting the public values underlying constitutional arrangements. It does not include identifying and imposing the options most likely to lead to the optimal actualization of those values.157 Therefore, judges may not yield to the temptation of strategic action too openly. In Bakke, however, not only is that temptation unusually palpable, but Powell’s opinion also ends in an almost explicit dissimulation requirement, under which the constitutional validity of affirmative action policies practically depends upon whether the pervasive nature of race consciousness in university admissions remains properly concealed. From the Reduction of Racial Inequality to Multiculturalism: The Ideological Side Effects of the Bakke Decision If the Bakke case is of such interest, it is also because of its substantial yet undervalued contribution to the development and institutionalization of multiculturalism as a now widespread, if not utterly dominant, ideology in the United States.158 In this respect, the factors accounting for the entanglement of antidiscrimination/affirmative action and that contemporary ideology deserve a closer examination. Why did the 1950s and 1960s drive

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toward the social and economic integration of blacks into the American mainstream morph into a proliferation of claims for cultural recognition voiced by an increasing number of “minority groups” playing the game of identity politics from the early 1980s on? How did one shift from affirmative action as an equality-oriented public policy to multiculturalism as a distinctive conception of American national identity? How did the merging of “race” and “culture” now dominant in U.S. public discourse progressively gain acceptance? The analysis of the Bakke decision offered above is actually relevant to answering these questions, as is the groundbreaking work of historian David Hollinger, to which I now turn.159 From Race into Culture160 A first, general connection between equality and multiculturalism lies in the fact that members of cultural minorities who ask the state for recognition, on the one hand, must feel that they also belong to the national community (otherwise their claim would make no sense), and on the other hand, must contend that the kind of recognition denied to them is actually granted to other groups. In this respect, their “identity” claim is thus amenable to being cast as a claim for equal treatment. Yet, what is arguably specific to the United States is the extent to which the very definition of the groups now commonly held to possess a distinctive “culture” has been increasingly permeated by a historical boundary-making process161 originally associated with a vertical, strictly hierarchical conception of human difference, as reflected in the primacy of an equality-versus-subordination analytical frame. Specifically, as Hollinger points out, today’s supporters of “multiculturalism” tend to rely on categories initially defined or reestablished in order to monitor the implementation of antidiscrimination law and assess the impact of affirmative action programs on previously subordinated groups. Initially, the administrative division of the U.S. population into whites, blacks, Asians, Native Americans, and “Hispanics”—what the author calls the “ethnoracial pentagon”162—was meant to identify those groups most likely to be discriminated against, given the social meaning assigned to some phenotypical distinctions by the racism of a not so distant past. Yet, even though racism officially has been discarded, those distinctions have been invested with a new, cultural value. And by taking for granted that the distinctions of the ethnoracial pentagon were also cultural boundaries, multiculturalism has reinforced them, even though one of the original goals of the civil rights movement was to reduce their salience. What

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had initially operated mostly as an instrument designed to measure the progress made in achieving the political objective of eradicating the legacy of race-based subordination and moving from a “white supremacist” to an egalitarian racial order163 became the basis upon which one would identify the subset of cultural minorities whose claims for representation and recognition ought to be accommodated.164 Hollinger provides many examples of this recent entanglement of race and culture. One of them is the curriculum change initiated at UC Berkeley in 1989, whereby all undergraduates were required to take courses devoted to the comparative study of at least three of the “cultures” uncritically ascribed to the five segments of the ethnoracial pentagon.165 Another one is to be found in the controversy set off that same year by historian Martin Bernal’s book Black Athena: The Afroasiatic Roots of Classical Civilization,166 in which a political argument was made for describing the pharaohs of some Egyptian dynasties as “black.”167 This projection into the past of a classification system characteristic of American society but alien to the historical era under examination could be understood as an attempt to reinforce the self-esteem of a marginalized minority by granting its members some kind of property rights to part of the West’s cultural legacy, a legacy conceived as a set of symbolic resources to be allocated according to the political requirements of the day.168 Yet, the current U.S. trend toward identifying race and culture raises at least two difficulties. First, it fosters a simplistic and homogenizing view of culture that undervalues the cultural differences within each of the ethnoracial macrocategories and underestimates the actual diversity of the U.S. population.169 Second, it detracts from the logic of antidiscrimination, whose purpose is to protect individuals from illegitimate kinds of unequal treatment based on physical features reflecting their membership in a subordinated group, regardless of the degree to which they share in the “culture” or “perspective” generally ascribed to members of that group.170 Hence the necessity of drawing a sharper distinction between the struggle against “racial” inequality and the promotion of cultural diversity. The Intellectual Genealogy of Contemporary Multiculturalism: Horace Kallen’s Cultural Pluralism and Its Limits The first point worth emphasizing is that the different dimensions of the ideology now identified as American “multiculturalism” were seen as

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being quite separate from one another by the author who is often considered as the main forefather of this line of thought, Horace Kallen. While the first proponents of “cultural pluralism” were Otto Bauer and Max Adler, two thinkers of the Austro-Marxist school, who advocated the creation of a supranational socialist state that would have replaced the Habsburg Empire and supposedly ensured the peaceful coexistence of the peoples of Central Europe, Kallen was responsible for introducing this notion into the American context. Born in Germany as the son of an orthodox rabbi before becoming a student of the philosopher William James and a colleague of John Dewey at Columbia, he saw the United States as a strictly political entity, devoid of a national culture of its own as a result of the growing diversity of its population brought about by the large-scale immigration of the 1880–1920 period. In his view, government officials simply ought to accept and encourage the persistence of subnational, descent-based communities on U.S. soil, since those communities were the only providers of cultural goods necessary to the human flourishing of their members.171 Yet, there are some significant differences between the cultural pluralism defended by Kallen and today’s multiculturalism of which it is often described as the intellectual matrix. First, Kallen’s cultural pluralism never became as integral a part of American public culture as its successor would later on. It remained a marginal trend, including in academia. In the interwar years, the theory of assimilation, as exemplified in the scholarship of Robert Park, Gunnar Myrdal, or E. Franklin Frazier, was still dominant in social science. Such assimilation of outsider groups was then held to be the natural end point of a welcome historical development marked by the progressive elimination of negative stereotypes about them. Second, and most importantly, Kallen himself, when protesting the Americanization policies implemented as part of the national mobilization during World War I, was mostly concerned with protecting from the “nativist” hysteria the unique cultural legacy of the newly arrived European immigrants, whose loyalty was then openly questioned. “Ethnic” minorities, not “racial” ones, were those whose fate he was primarily concerned about. In his view, the communities whose traditional “culture,” practices, and values had to be preserved from the annihilating power of majority-driven conformism included neither Native Americans, nor Asians, nor “Hispanics,” nor blacks.172 Just like Robert Park, arguing from a different, and actually quite opposite, perspective, contended that assimilation would not work for groups such as blacks and Asians,173 whose members remained phenotypically different from the white

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majority regardless of how acculturated they were, Kallen took for granted the existence of deep-seated differences between those groups and the new immigrants from Eastern and Southern Europe that made the cultural pluralism paradigm irrelevant as far as “racial minorities” were concerned.174 Even when he eventually broadened his conception of “pluralism” so as to take into account “regional,” “religious,” “aesthetic,” and “political” dimensions of diversity, instead of focusing only on “ethnic or “cultural” differences, race remained out of the picture.175 At that time, it was still exclusively connected with an equality-versussubordination conceptual framework that remained separate from the issue of whether the cultural diversity of the U.S. population ought to be considered as a threat or as an asset. The “Culturalization” of Race In view of this historical background, how is one to account for the entanglement of these two previously distinct sets of issues now perceptible in contemporary U.S. “multiculturalism”? The answer to that question partly lies in the way in which some of the problems raised by affirmative action programs in university admissions have been dealt with. To a certain extent, multiculturalism emerged as a by-product of the process by which the (expected and actual) negative side effects of such programs were handled—or so I shall argue. Among those negative side effects one of the most disturbing is the academic failure of a significant number of students who got admitted through affirmative action, yet proved unable to cope with the competitiveness of their new environment. For instance, within the population of freshmen at Berkeley in 1981, 76 percent of whites and 78 percent of Asians (Filipinos excluded) had graduated five years later, as against 63 percent of Mexican Americans (“Chicanos”), 47 percent of Native Americans, and 46 percent of blacks.176 Considering the United States as a whole and the seven-year period 1981–1988 (even though in theory a diploma can be obtained in only four years), the figures were 71 percent for whites, 67.3 percent for Asians, 43 percent for Hispanics, and 37.5 percent for blacks.177 Besides, while it is true that the likelihood of graduating is smaller for black students irrespective of their high school credentials (and thus regardless of the discrepancy between such credentials and those of whites),178 what happened at the University of California in the 1980s, where the performances of affirmative action students were closely monitored, does suggest that race-based preferential treatment in admissions is partly responsible for this state of affairs. To take

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just one example among many, in 1986, 90 percent of the UCLA law students who had been admitted on the basis of their academic credentials alone passed the bar exam, but only 30 percent of those admitted through the university’s “diversity”-enhancing policy did.179 Given that these sobering statistics were a matter of common knowledge from the mid-eighties on, the proponents of affirmative action could not afford to remain silent. To counter the argument that such data were evidence in part of black students being trapped in a subculture disparaging individual efforts toward academic achievement as a servile and inauthentic imitation of white behavior (“acting white”),180 some defenders of the policy chose to emphasize a somewhat less dispiriting explanation. Was it not possible that the reasons for the difficulties encountered by black and Hispanic students should lie in the prevalence of a typically Western, and therefore alienating, “perspective,” reflected both in the content of the curriculum and in the definition of the criteria for assessing academic performance? In this respect, the “multiculturalist” claims voiced by minority students’ organizations could help fulfill a psychological need by providing a rationalization of the failure experienced by a fraction of them. Those students’ self-esteem could then be preserved through selfpersuasion as to the universities being entirely permeated by an ethnocentric bias detrimental to the members of marginalized groups and arguably conceivable as a residual, culture-based discrimination.181 Yet, one may still wonder why many university officials basically accepted the validity of such claims without opposing much resistance. Perhaps one reason is the absence of any other publicly defendable explanation for the performance gap between the different ethnoracial groups, given that the extent of the advantage provided to blacks and Hispanics through affirmative action was generally not acknowledged. Because most universities denied being forced to lower their standards in order to enroll a suitable proportion of students from these two underrepresented minorities, they could not counter the “multiculturalist” critique by pointing to the most likely cause of that gap, namely the overrepresentation of blacks and Hispanics among the (initially) least well-prepared students admitted, itself a logical consequence of race-based preferential treatment. Since an account of that gap in terms of blacks and Hispanics’ “natural” inferiority in the field of education was obviously (and, needless to say, rightly) discarded, what other explanation was there left but one denouncing the covertly ethnocentric nature of the curriculum itself? At the same time, the dissimulation of how affirmative action actually works, partly designed to avoid hurting the self-esteem of its purported

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beneficiaries, has itself become increasingly visible since the early 1980s, as reflected in a series of incidents the most famous of which involved Georgetown University. In that case, in 1991, a law student at Georgetown, Timothy Maguire, disclosed the grades and the scores on the Law School Admission Test of a number of black and Hispanic students who eventually were admitted, using data that he had been private to when working in the Office of Admissions. As a response, the dean of the Law School instructed that all the unsold copies of the student newspaper that had published such data should be seized. The university denied having ever resorted to “preferential treatment”, yet refused to grant anyone access to the internal documentation that might have served as evidence of the truthfulness of that assertion, and eventually it instigated disciplinary proceedings against Maguire.182 In that same vein, Linda Gottfredson, a University of Delaware professor who had opposed the practice of “harmonizing” the scores obtained on hiring tests by members of different racial groups so as to neutralize the disparate impact that such tests had on blacks and Hispanics (race norming),183 was targeted for minor harassments of various kinds, including cuts in her research funding.184 Even university officials, while they are unsurprisingly reluctant to use the word “dissimulation” to describe their own behavior and emphasize instead the existence of a “confidentiality” requirement, willingly acknowledge that in their view information such as that disclosed by Maguire ought not to be made public.185 From there follows a restriction of the set of plausible explanations for the gap between the performances and graduation rates of the different groups defined on an ethnoracial basis, which paves the way for charges against the “cultural exclusion” that the curriculum would operate. In this respect, the institutionalization of multiculturalism in American universities is but one of the side effects of the process by which the antimeritocratic aspect of affirmative action has been systematically concealed. To gain a better understanding of the undertheorized connection between these two, often conflated policy developments, one needs to further examine the emergence of the notion of “diversity” in the Bakke case as being the only acceptable justification for an affirmative action program implemented by a university not guilty of some judicially ascertained past discrimination. For this is arguably the missing link—a very problematic one—between the reduction of race-based inequality and the valorization of cultural pluralism. As one will remember, according to Justice Powell, race could be taken into account by admissions committees provided this was done as part of a policy of promoting the diversity of “experiences, outlooks, and

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ideas” within the student body. Yet, this hypothesized correlation between race and some—undefined but relatively homogeneous and presumably valuable—core of perceptions and representations does seem to partake of a primordialist conception of race, under which such “experiences, outlooks, and ideas” run the risk of being considered just as immutable as their racial correlate, the emancipatory thrust of the educational process notwithstanding. Another problem raised by assuming the existence of such a correlation is the possibility that this should foster within racial minorities a most stifling kind of conformism leading to the stigmatization of “dissenters,” that is, of those who would detract from the outlook presumptively ascribed to them on account of their group membership.187 Another one still is that the essentialist aspect of the diversity argument, because it reifies racial categories by casting them as bases of inference—“John is black; he will therefore likely have this view on that topic,” or so the argument goes—risks reinforcing the stereotypes that the civil rights movement was intent on eradicating. The elimination of the tendency to automatically connect physical features with negative traits or propensities is arguably jeopardized once the Supreme Court similarly considers the race of an individual to be a reliable proxy allowing one to (implicitly) define, or simply anticipate, the nature of her potential contribution to the intellectual diversity of the student body.188 Not only does Powell’s reasoning run the risk of hindering the deracialization of American society, but it also introduces for the first time in the Fourteenth Amendment case law the seeds of an altogether different, multiculturalist approach. Indeed, in his view, race can enter the admissions process only insofar as it is correlated with other, intrinsically relevant factors from the standpoint of university officials. The set of such intrinsically relevant factors, however, is arguably narrow. As Richard Posner puts it, no one would even think of asking universities “to strive for diversity in the height of the students, or in their weight, or their blood pressure.”189 But then, if the array of properties considered as educationally relevant (those that Justice Powell describes as “experiences, outlooks, and ideas”)190 is to be encompassed within a single unifying category, is not the notion of “culture” flexible and substantively indeterminate enough to work as such? As a matter of fact, this has been taken for granted by a number of authors who followed the lead of Justice Powell in extolling the virtues of cultural “diversity” and casting it as the main justification for affirmative action programs in higher education, both for student admissions

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and faculty hiring. Yet, within such currently dominant arguments, remnants of an equality-oriented paradigm that have not been entirely dissolved into the multiculturalist perspective are still to be found. The assertions of legal scholar Mari Matsuda as to the unique ability of “victim group members” to grasp some “identifiable normative priorities” are a case in point.192 Other scholars have made the more sophisticated (and more plausible) argument that, because the outsider status of blacks and Hispanics has enabled them to develop a specific and arguably valuable outlook on the operation of the entire social system, “diversity,” defined as their being represented in a given population above a certain threshold, will increase the volume of knowledge available for collective deliberation and thus potentially improve its outcome, especially as far as the design and assessment of antidiscrimination law and policy are concerned.193 Minority members would just be better positioned to accurately perceive the full extent of the subordination-producing structure and racial hierarchy whose contingent and self-perpetuating character whites could more easily remain blind to, and this “epistemic privilege”194 would allow them to perform a critical function beneficial to the political community as a whole.195 By “construing the collective experience [of minorities] as viewpoints on how to actually provide equal opportunities for all,”196 such a defense of multiculturalism thus brings us back to this ideology’s initial, egalitarian impetus. Be that as it may, from the second half of the 1980s on, “diversity” has become the ultimate value in reference to which one can now justify taking race into account not only in student admissions and faculty (and staff) hiring, a practice that began in the early 1960s,197 but also in designing the curriculum. This reflects an increasingly popular conception of the university as a multicultural forum geared toward celebrating cultural differences between communities defined on an ethnoracial basis, in line with Kallen’s conception of “pluralism,” or at least ensuring a fair representation of the contributions of minorities to American history and culture. The focus of social sciences and humanities on the European (and male) component of the U.S. cultural heritage has thus been criticized as a restriction on diversity that ought to be discarded as such. The aggregative function performed by this notion is evident in the following quote, drawn from a Berkeley internal memorandum: Throughout the greater part of our history, for reasons that have to do with relations of class and privilege, the American university has reflected a narrow spectrum of American diversity in its faculties, students and curricula . . . If we would continue to hold up the

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ideal of an inclusive culture, then we must also recognize that the full diversity of ethnic groups that contribute to it needs to be represented in our curricular and research priorities.198 Of course, the idea of diversifying the curriculum was not entirely unprecedented. Ethnic Studies and Women Studies programs had been created under student pressure in the late 1960s, with a view to delineating a new area of research centered on the specific experience of marginalized groups. Initially, however, the contribution of these new transdisciplinary subfields to the advancement of knowledge was challenged by many inside and outside academia, and their leaders remained at the periphery of the main institutions of higher learning.199 It is only in the wake of Bakke that their standing received a tremendous boost from the Supreme Court’s acknowledgment of the correlation between race and perspective that they had been the first to emphasize and from the quasi-universal celebration of “diversity” by university officials that followed. Ethnic and Women Studies programs were then in a position to spread further the diversity mantra, with their initial supporters now appearing as a prescient “avant-garde.” Their—originally marginal— project of redefining American culture so as to make more room for the contribution of ethnoracial minorities could now be framed as one dimension of the “diversity” movement, and a most useful one in terms of diversifying the student body itself. This is so since the existence and visibility of Ethnic Studies programs in elite universities does seem to attract well-qualified black and Hispanic students, who consider it as evidence of how welcoming the institution will be toward them.200 As a general matter, the scope of the changes in the organization and the contents of the curriculum brought about by Bakke are impressive indeed. While at Stanford in 1988 the replacement of the “Western Civilization” course by one entitled “Cultures, Ideas, and Values” that involved studying a number of texts written by women and members of ethnoracial minorities set off a well-publicized controversy,201 such compulsory courses for first-year students designed to display the multicultural character of American society are now all over the place. Besides, within mainstream academic disciplines, there has been a concerted effort to include the specific experience of minority groups in current areas of research. Thus, in 1991, 34 percent of American universities had a compulsory course focused on the cultural diversity of U.S. society; one-third had Ethnic Studies programs; 54 percent claimed that their curriculum in literature and in the social sciences was informed by a “multiculturalist” perspective; and 35 percent had “multicultural

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centers.” The institutionalization of multiculturalism is thus a truly national trend, even though elite institutions and state universities initially took the lead.202 The transformations brought about by the spread of the ideology of diversity to all aspects of university life today are so far-reaching as to appear almost irreversible. Besides, this institutionalization of multiculturalism has not been circumscribed to the academic sphere. It is now perceptible in American public culture as a whole,203 and leading politicians frequently extol the “diversity” of the U.S. population as being one of the country’s most distinctive and most valuable features.204 Of course, this idea was already present during the Founding era, as reflected in the choice of the national motto E pluribus unum205 or in Crèvecoeur’s lyrical description of the United States as a place where “individuals of all nations would be melted into a new race,”206 and since then the uniqueness of the American people has often been defined by emphasizing the heterogeneity of its makeup through enumerations of various kinds.207 However, in most instances the final product of this original mixture was seen as unitary in kind. Also, the valorization of this soon-to-be-dissolved heterogeneity remained marginal until the 1940s. It is only as a side effect of the conflict with Nazi Germany—and in contradistinction to that new enemy’s defining ideology—that the legitimate criteria for delineating the American political community evolved in such a way as to cast the acknowledgment of diversity as one of its most salient features, thus anticipating today’s more assertive “multiculturalism.”208 Moreover, while during World War I the ties that immigrants (German and Irish immigrants in particular) retained with their homelands triggered suspicions of disloyalty to the United States, during World War II the persistence of such ties were encouraged, since most of the European countries from which immigrants to America came were occupied by German troops. The war effort was better served by mobilizing nostalgia for the invaded homeland than by requiring instant assimilation. The heterogeneity of the U.S. population was now seen as an asset rather than a liability.209 Yet, only after Bakke did the celebration of diversity reach its acme, within as well as beyond the university. Thus, the criteria for allocating immigration visas have been modified in order to partly compensate for the homogenizing effects of the priority granted to family reunification.210 That homogenization is now seen in a negative light. Likewise, former president Bill Clinton explicitly mentioned “diversity” as a justification for his concern for including members of ethnoracial minorities in his first cabinet,211 a fact that reflects both the inclusion of this notion in standard political rhetoric and its legitimacy-enhancing

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power. Finally, the risk taken by any politician criticizing, even implicitly, the ideology of diversity is well illustrated by the following incident. In 1983, the secretary of the interior in Ronald Reagan’s administration, James Watt, was forced to resign after the outcry provoked by his halfjoking reference to a committee that he was responsible for setting up as representing “every kind of mix you can have” since it included “a black, a woman, two Jews and a cripple.”212 Beyond the admittedly insensitive choice of the words used to describe the groups involved, the point here is that a government official cannot emphasize the deliberate and artificial character of “diversity” and expect to retain his appointment. By implicitly describing the fact of taking into account membership in a marginalized minority as a routinized requirement to be met on top of the standard, more obviously legitimate nomination criteria, Watt acted in a distasteful, unorthodox way. “Diversity” is not a topic that one can safely make fun of. None of this means that American society today is objectively more “diverse” than it used to be in all respects. Political philosopher Philippe Raynaud is right to note that “multiculturalism,” far from reflecting “a greater cultural heterogeneity,” is “the rallying cry for ‘minorities’ whose identities have very little to do with culture per se.”213 Only by implicitly equating “culture” with “race” can one contend that contemporary multiculturalism offers an accurate description of American society; a macrohistorical analysis may rather lead to the conclusion that lifestyles, practices, and values are less diverse in the United States now than they were in the past, as a result of the progressive erosion of religious and sectional differences (the North-South divide in particular). Yet, this tendency toward equating culture with race does not only reflect the fact that claiming a culture “increases the legitimacy of marginalized groups.”214 It is also a by-product of the Bakke decision in which a policy obviously designed to facilitate the access of underrepresented ethnoracial minorities to higher education was justified by its alleged contribution to viewpoint diversity. In spite of its many fallacies, this argument did meet some of the acceptability criteria specific to legal discourse, in contrast with the more convincing “deracialization” argument. Multiculturalism as a contemporary American ideology is thus partly a side effect of the juridicialization of political conflicts over the reduction of race-based inequality.

GENERAL

CONCLUSION

Most of the arguments used by the supporters of affirmative action partake either of the corrective justice paradigm or, from the end of the 1970s on, of a more diffuse celebration of the cultural diversity that the policy may be held to promote in a more or less direct way. Yet, neither of these justifications actually stands up to scrutiny. More convincing is the Dworkinderived consequentialist and strategic argument according to which affirmative action ought to be conceived as an instrument designed to bring about the deracialization of American society by reducing the correlation between race and class, since that correlation is now one of the main sources of disadvantage for all black individuals. And as a matter of fact, although this argument has implications that may have deterred the courts from endorsing it, a case can be made that the metagoal of reducing the saliency of race as a basis for social identification has led the Supreme Court to deliberately conceal how affirmative action operates, especially as far as its antimeritocratic component is concerned. There are a number of Supreme Court decisions where, paradoxically enough, it is almost explicitly stated that, as a practical matter, dissimulating the most distinctive features of the policy is required if it is to be held legally valid. One of them is Regents of the University of California v. Bakke, in which the legitimization of affirmative action proceeded through the introduction of a justification that is objectively inadequate yet has proved ideologically groundbreaking, with “diversity” working as the missing link between antidiscrimination and multiculturalism. Recent developments in the affirmative action controversy also seem to corroborate some of the claims made in this book. Thus, on April 15, 1997, the legislature of Texas responded to the drop in the number of black and Hispanic students due to the elimination of affirmative action programs in state universities1 by voting a bill instructing those universities to admit the top 10 percent of every high school’s graduates, regardless of grades and test scores.2 Similar policies have been introduced in other

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states where affirmative action is no longer part of the public higher education system,3 such as California (where the percentage of automatically admitted graduates has been set at 4 percent), and Florida (where it is 20 percent). As expected, this new arrangement has helped reduce the ongoing decline in the proportion of blacks and Hispanics among state university students, since there are still a large number of high schools where virtually all pupils belong to either one of these two minority groups.4 Given the performance gap between black and white high school students,5 the persistence of de facto school segregation is a necessary condition for percent plans to work as a functional substitute for race-based affirmative action. Anyway, we now have a situation in which “the explicit use of race in a college admissions formula is forbidden, while the intentional use of a proxy for race publicly adopted so as to reach a similar result is allowed.”6 Hardly anyone is willing to face the predictable consequence of strictly color-blind admissions policies, namely, a sharp decline in the percentage of blacks and Hispanics in American elite universities and professional schools.7 Thus, any successful assault on affirmative action in the near future is likely to be mitigated by subterfuges of some kind, whose underlying function is only to diminish the visibility of race-consciousness in contemporary America. Still, the likelihood that such an assault might be successful in the near future has markedly declined since the spring of 2003. On June 23 of that year, a quarter of century after Bakke, the Supreme Court unambiguously endorsed Justice Powell’s view that obtaining a diverse student body is a “compelling state interest” that can justify the use of race as a “plus” factor in university admissions in Grutter v. Bollinger,8 a 5-to-4 decision upholding the constitutionality of an affirmative action program at the University of Michigan’s law school that sought to enroll a “critical mass” of underrepresented minority students for that purpose—without further specification. At the same time, in a 6 to 3 decision, Gratz v. Bollinger 9 the high court struck down the affirmative action policy of the University of Michigan’s undergraduate school, which systematically distributed 20 points out of the 100 needed to guarantee admission to all members of designated racial or ethnic minorities. Whether the specific element triggering that judgment of unconstitutionality was the extent of the bonus granted to minority candidates or simply its being quantified is not entirely clear. Still, the automatic assignment of a predetermined, constant, numerical value to ethnoracial minority membership high enough to virtually guarantee admission to every minimally qualified minority student, because it lacked the flexibility of the “holistic” approach extolled in Bakke and Grutter, was held to be incompatible with

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the individualized assessment of each applicant’s potential contribution to diversity necessary for an affirmative action plan to pass constitutional muster. On the surface, that is the two decisions’ main contribution to the Supreme Court’s case law on affirmative action.10 Yet, the Gratz case also reflects the acknowledgment and denunciation by a minority of Supreme Court Justices of the “deliberate obfuscation”11 involved in the majority’s position. Thus, according to Justice Ginsburg, “one can reasonably anticipate . . . that colleges and universities will seek to maintain their minority enrollment . . . whether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue [the undergraduate one]. Without recourse to such plans, institutions of higher education may resort to camouflage . . . If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods and disguises.”12 Justice Souter holds a similar view, and refuses to “treat the candor of [that] admissions plan as an Achilles’ heel.” In contrast to the percentage plans, which “get their racially diverse results without saying directly what they are doing or why they are doing it,” he praises “the college’s forthrightness is saying just what plus factor it gives for membership in an underrepresented minority.” “Equal protection cannot become an exercise in which the winners are the ones who hide the ball,” he argues.13 Yet, as suggested in this book and as confirmed by the very fact that Souter and Ginsburg’s are dissenting opinions, to a certain extent, it has. Finally, unless one takes for granted that the very existence of such subterfuges testifies to the intrinsic immorality of what they attempt to conceal,14 one must consider whether the dissimulation requirement that is consubstantial to the endogenous logic of affirmative action as described above—a dissimulation whose object is both the antimeritocratic and acutely race-conscious dimensions of the policy and its transformative purpose—can itself be justified in a liberal democracy. This lack of transparency raises at least the following two difficulties. First, even if one agrees with Dworkin that the white individuals disadvantaged by affirmative action have no right that their application to a given position should be assessed on narrowly defined meritocratic grounds, the very fact that affirmative action is not acknowledged for what it is leads to a conflict between the policy and the applicants’ legitimate expectations. Assuming the object of such expectations is that state actors will comply with the rules by themselves laid down as far as the allocation of social goods is concerned,15 a case can be made that the existence of an antidiscrimination statute that in theory protected whites as well as members of racial minorities—the 1964 Civil Rights Act—

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triggered among the individuals bearing the cost of affirmative action “legitimate expectations” that went unfulfilled, namely, the expectations of not being disadvantaged on the basis of race. While such expectations surely account in part for the dissimulation by universities and employers of how affirmative action operates as a practical matter, they are also reinforced by the failure to acknowledge and justify the departure from “first-generation” antidiscrimination law16 that affirmative action entails, a failure partly determined by the metagoal of deracialization. Second, in contradistinction with the Machiavellian conception of secrecy as being consubstantial to the art of government,17 democratic regimes are partly grounded on the principle that every decision affecting the distribution of social costs and benefits among persons under state jurisdiction ought to be publicly justifiable, all the more so when constitutional values are at stake.18 This “publicity principle” thus seems incompatible with the enactment of measures the effectiveness of which depends on their opacity,19 especially when those measures are specifically designed to transform the perceptions, representations, and cognitive maps of citizens in a predefined way. While it is arguably necessary that those targeted for this well-meaning manipulation remain uninformed of its existence if the strategy is to be successful, the depersonalizing dimension of the process involved is enough to cast some doubt on its legitimacy, regardless of how unobjectionable its ultimate goal is: “Exploiting intrapsychic mechanisms that are unknown to the individual can never be justified; planning other people’s experience is unethical.”20 This objection cannot be easily dismissed. Yet, at least two arguments might serve as a basis for elaborating a tentative defense of the strategies of concealment described in chapter 6. The first one is grounded on the distinction between a rule and a principle.21 While applying a rule is strictly determined by the empirical observation that the factual conditions that need to be met for the rule to apply, as specified by the rule itself, are indeed met, under a binary, either/or reasoning, principles work differently. Their degree of application, that is, the weight assigned to them as compared with other, equally relevant but potentially conflicting principles, is the product of a context-bound, nonautomatic assessment. And unless one “indulges in the fantasy of an entirely transparent [social order],”22 the requirement of publicity must be treated as a principle, meaning that it may well be subordinated to another, competing principle as a result of a political judgment23 without its validity being challenged for that matter. The most that one may ask for is that the reasons that might lead state authorities to bypass the publicity principle for the sake of another principle themselves be made public.

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The second argument would actually challenge the apparent contradiction between the dissimulation at work in the case law and in current justifications of affirmative action and the publicity principle, by more narrowly delineating the scope of the latter, in line with its original meaning. As a matter of fact, according to Immanuel Kant’s seminal elaboration of it, the publicity principle typically applies to “maxims” of a general kind designed to guide the behavior and practical judgments of individuals, not to the substance of the policies implemented as a result of such judgments.24 It is thus conceivable that the dissimulation inherent in judicial decisions might be justified in relation to a higher-order prescription, itself publicly defendable and according to which it might be acceptable to infringe on the publicity principle if doing so were the only way of preventing those negative side effects both strong enough to put the ultimate goal out of reach and generated through a causal process disconnected from any moral assessment of the measures thereby shrouded in secrecy.25 Yet, one would still need to ascertain whether the argument in relation to which this dissimulation arguably makes sense—the argument that affirmative action is an instrument for deracializing American social consciousness—is itself not only internally consistent and therefore theoretically acceptable, but also actually accepted by a majority of the U.S. political community. Be that as it may, most supporters of affirmative action have taken an entirely different course. They have eagerly joined the chorus of diversity worshippers so as to conceal the specificity of the race consciousness involved in the policy, in line with the very essence of its ultimate goal. Thereby one is able to establish a presumably beneficial congruence, even a structural homology, between that ultimate goal, that is, the achievement of a predicament in which the specific disadvantage affecting blacks as a result of racial identification will have disappeared, and the assumptions on which the dominant justification put forward to support the instrument used to that end––the “diversity” argument––relies. By deliberately trivializing race and diluting it into a set of basically equivalent diversityenhancing features, the diversity paradigm incorporates a mimetic representation of the very social configuration that it hopes to promote. Perhaps the only way to neutralize racial categories is to act as if they had already been neutralized, as if “race” had already become just “one factor among others.” Through this kind of strategic mimesis, by which one simulates something in order to make it happen, the instrumental and expressive dimensions of the justification for affirmative action that now prevails become practically indistinguishable from one another. Finally, that this justification was introduced in a judicial decision is of no small importance. In this respect, I agree with Philippe Raynaud, who

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underlines “the key role played by the law in the [American] political process, whether at the decisional level or, even more importantly, in terms of how issues are framed and legitimate divides are defined.”26 Raynaud goes on to emphasize “the encounter between the momentum of ‘rights’ and the impetus to recognize “diversity,’ ”27 and suggests that the political functions performed by a Supreme Court that is yet required to “speak in the language of the law only” have “strengthen[ed] what is arguably the ultimate driving force of American politics: the partial transformation of interest politics into a politics of recognition.”28 This general interpretation is corroborated by the analysis of the Bakke decision offered in this book. The emergence of the diversity argument, far from being exclusively or even primarily motivated by Justice Powell’s concern to minimize the negative side effects of affirmative action, is first geared toward preserving the institutional legitimacy of the judicial branch. And that legitimacy rests in great part on the Court’s voluntary restriction of its own domain of intervention, which prevents it from assessing the constitutionality of affirmative action on utilitarian grounds, since such cost benefit calculations in theory remain the exclusive province of the legislator. Because judges have internalized the constraints imposed by this pragmatic rule, most of them remain unwilling to endorse the deracialization argument as a justification for affirmative action. This argument ultimately relies on an irreducibly political assessment in which the courts cannot openly indulge. In this respect, the diversity argument is not vulnerable, and because the double-edged process of juridicialization of political decision making and politicization of judicial decision making that is most extensive in the United States is still bound to remain incomplete and not entirely acknowledged, that argument had a key comparative advantage. As a contingent result of the 1978 Bakke decision, it became the missing link between two initially separate strands of public discourse focused, on the one hand, on racial equality, and on the other hand, on cultural pluralism. While multiculturalism no doubt stems from a constellation of different factors among which the judicial one is not necessarily the most important, the Bakke case does stand as a remarkable illustration of the broader, unexpected side effects produced by the endogenous requirements of judicial decision making. To a degree that has yet to be determined, such requirements have played a causal role in the development of an ideology whose impact has been greater than what its internal consistency might suggest. In this respect, contemporary U.S. multiculturalism is in part a by-product of the juridicialization of politics in American society.

NOTES

Introduction 1. Regents of the University of California v. Bakke, 438 U.S. 265 (1978), p. 407. 2. See Noëlle Burgi-Golub, “Égalité, équité. Les catégories idéologiques des politiques sociales,” Politix, 34, 1996, pp. 47–76. 3. See Aristotle, Nichomachean Ethics, Indianapolis, The Library of Liberal Arts, Martin Oswald trans., 1962, book 5, section 14. 4. See Robert S. Summers, Instrumentalism and American Legal Theory, Ithaca, Cornell University Press, 1982. 5. See generally Jules Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory, Oxford, Oxford University Press, 2003. 6. The categories used by U.S. federal agencies to classify the American population juxtapose a distinction between “racial” groups (such as whites, blacks, Asians, and Native Americans) and the “Hispanic/non-Hispanic” distinction, which is more of an “ethnic” kind (if one understands ethnicity as being tantamount to national origin, as both the federal government and the American sociological tradition tend to do). Following historian David Hollinger, I will use the expression “ethnoracial minorities” to refer to those groups that, in addition to women, are the main beneficiaries of affirmative action programs: blacks, Asians, Native Americans, and Hispanics; see David Hollinger, Postethnic America: Beyond Multiculturalism, New York, Basic Books, 2006 [1995], pp. 8–9; Victoria Hattam, “Ethnicity and the American Boundaries of Race: Rereading Directive 15,” Daedalus, 134 (1), 2005, pp. 61–69. 7. See generally J. R. Pole, The Pursuit of Equality in American History, Berkeley, University of California Press, 1993 [1978]. 8. See Alexis de Tocqueville, Democracy in America, New York, Schocken, 1961 [1835–1840], especially vol. 1, chapter 6. 9. See Talcott Parsons, Essays in Sociological Theory, New York, The Free Press, 1964, pp. 408–409; Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History, New Haven, Yale University Press, 1997, pp. 3–50. 10. Affirmative action for members of this minority raises specific issues discussed in Carole Goldberg, “American Indians and ‘Preferential’ Treatment,” UCLA Law Review, 49 (4), 2002, pp. 943–989. 11. See Thomas Nagel, “Equal Treatment and Compensatory Discrimination,” in Marshall Cohen, Thomas Nagel, and Thomas Scanlon, eds., Equality and Preferential Treatment, Princeton, Princeton University Press, 1977, p. 3. “Qualifications” are the relevant informational data that one will take into account in order to predict the level of job performance that each applicant can be expected to reach. One should note that the definition of “preferential treatment”

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12.

13. 14.

15.

Notes

endorsed here does not imply that the methods currently employed by American firms and universities to assess applicants’ “qualifications” are indeed optimal—or even adequate. Besides, I will not dwell on those instances in which the race of an applicant might be considered as an “objective qualification” of some kind. This may arise out of a concern for verisimilitude in the representation of a fictional predicament involving racial divisions, such as when one deliberately chooses a black actor to play the part of Othello (see generally Russell Robinson, “Casting and Caste-ing: Reconciling Artistic Freedom and Antidiscrimination Norms,” California Law Review, 95 (1), 2007, pp. 1–74), or because of the intrinsically relational nature of the task to be performed (such as when one considers race in assigning a police officer the mission of infiltrating a racially homogeneous criminal gang); in this connection, see generally Paul Frymer and John David Skrentny, “The Rise of Instrumental Affirmative Action: Law and the Significance of Race in America,” Connecticut Law Review, 36 (3), 2004, pp. 677–724. See David Miller, “Distributive Justice: What the People Think,” Ethics, 102 (3), 1992, pp. 555–593; Paul Sniderman and Edward Carmines, Reaching Beyond Race, Cambridge (Mass.), Harvard University Press, 1997, pp. 22–27, 99–139. That color blindness and meritocracy should qualify as genuine principles remains a point of contention. On color blindness, see Andrew Kull, The Color-Blind Constitution, Cambridge (Mass.), Harvard University Press, 1992; Kwame Anthony Appiah and Amy Gutmann, Color-Conscious: The Political Morality of Race, Princeton, Princeton University Press, 1996; David Strauss, “The Myth of Colorblindness,” in Philip Kurland, Gerhard Casper, and Dennis Hutchinson, eds., 1986. The Supreme Court Review, Chicago, University of Chicago Press, 1986, pp. 99–134. On meritocracy, see John Rawls, A Theory of Justice, Cambridge, (Mass.), Harvard University Press, 1971, p. 134 ; Michael Sandel, Liberalism and the Limits of Justice, Cambridge, Cambridge University Press, 1982, pp. 19–24; 69–72, 77–87; Joel Feinberg, Doing and Deserving, Princeton, Princeton University Press, 1970; David Miller, “Two Cheers for Meritocracy,” The Journal of Political Philosophy, 4 (4), 1996, pp. 277–301. See Nathan Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy, New York, Basic Books, 1987 [1975], pp. 196–197. The distinction between outreach and preferential treatment notwithstanding, both kinds of affirmative action involve making decisions on the allocation of scarce resources on the basis of race. Everything else being equal, devoting time and money to set up training programs for blacks will reduce the amount of resources that will remain available to promote the training of individuals outside the targeted group. Similarly, as a practical matter, the fact that universities concentrate their outreach activities on high schools heavily populated by black students will work to the detriment of those students from other high schools toward whom no extra effort to disseminate information on access to higher education will have been directed. In short, both policies have a zero-sum-game dimension. In this respect, they are located on a continuum: while being formally similar as to their preferential component, they differ in the nature of the goods to be allocated, with outreach allocating only those intermediate resources instrumentally valuable for obtaining the goods—jobs, government contracts, and university admissions— whose final distribution among racial groups is being directly altered by preferential treatment. In March 1995, the Supreme Court redefined in a more restrictive way the conditions under which affirmative action programs in the award of government contracts would be considered acceptable (Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995)). Two months later, on July 20, 1995, the Board of Regents of the University of California at Berkeley, an institution once known for being in the forefront of the movement to promote ethnic and racial diversity, enacted a rule of color-blindness in admissions procedures. In March 1996, in Hopwood v. State of Texas (78 F.3d 932 5th Circuit (1996)), the United States Court of Appeals for the 5th Circuit also forbade taking race into account in admitting applicants to state universities and professional schools in Texas, Mississippi, and Louisiana. On November 5, 1996, almost 55 percent of the electorate in California voted in favor of “Proposition 209,” thus putting an end to all kinds of preferential treatment programs in the public sector. Two years later, another

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popular initiative referendum held in the state of Washington led to the same outcome. In Florida, in February 2000, Governor Jeb Bush signed an order eliminating ethnoracial criteria in procedures for awarding procurement contracts and in state university admissions. Finally, as a result of the constitutional amendment enacted through the “Michigan Civil Rights Initiative” approved by 58 percent of the voters on November 7, 2006, all affirmative action programs in the operation of public employment, education, or contracting are now banned in that state as well. 16. Given the existing, quite comprehensive literature on this topic, I will dwell on it no further: see Hugh Davis Graham, The Civil Rights Era: Origins and Development of National Policy, 1960–1972, New York, Oxford University Press, 1990; John David Skrentny, The Ironies of Affirmative Action: Politics, Culture, and Justice in America, Chicago, University of Chicago Press, 1996; Glazer, Affirmative Discrimination; Lydia Chavez, The Color-Bind: California’s Battle to End Affirmative Action, Berkeley, University of California Press, 1999; Nicholas Lemann, The Big Test: The Secret History of the American Meritocracy, New York, Farrar, Straus and Giroux, 1999, pp. 278–341. On the fit or lack of fit between the logic of affirmative action and the ethnic and racial categorization system used by the federal government, see generally Christopher Ford, “Administering Identity: The Determination of ‘Race’ in Race-Conscious Law,” California Law Review, 82 (5), 1994, pp. 1231–1285; Ann Morning and Daniel Sabbagh, “From Sword to Plowshare: Using Race for Discrimination and Antidiscrimination in the United States,” International Social Science Journal, 57 (183), 2005, pp. 57–74; Peter Skerry, Counting on the Census? Race, Group Identity, and the Evasion of Politics, Washington, DC, Brookings Institution, 2000; Melissa Nobles, Shades of Citizenship: Race and the Census in Modern Politics, Stanford, Stanford University Press, 2000; Joel Perlmann and Mary Waters, eds., The New Race Question: How the Census Counts Multiracial Individuals, New York, Russell Sage Foundation, 2002; Kim M. Williams, Mark One or More: Civil Rights in Multiracial America, Ann Harbor, University of Michigan Press, 2006. On the gradual and incomplete process of incorporating a principle of color blindness into the Constitution, of which the recent attacks against affirmative action can be seen as the last step, see Kull, The Color-Blind Constitution. Finally, in addition to affirmative action stricto sensu, there are other policies that detract from that principle since they involve the use of race by state actors in an integration-oriented perspective: on the one hand, desegregation measures designed to remedy “excessive” imbalances in the racial makeup of schools, such as busing (see Owen Fiss, “School Desegregation: The Uncertain Path of the Law,” in Marshall Cohen, Thomas Nagel, and Thomas Scanlon, eds., Equality and Preferential Treatment, pp. 155–191; David Armor, Forced Justice: School Desegregation and the Law, New York, Oxford University Press, 1995; Charles Clotfelter, After Brown: The Rise and Retreat of School Desegregation, Princeton, Princeton University Press, 2004); on the other hand, the creation of “minority-majority” districts aimed at increasing the number of black and Hispanic elected officials (see Morgan Kousser, Color-Blind Injustice: Minority Voting Rights and the Undoing of the Second Reconstruction, Chapel Hill, University of North Carolina Press, 1999; Bernard Grofman and Chandler Davidson, eds., Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965–1990, Princeton, Princeton University Press, 1994; David Epstein, Richard Pildes, Rodolfo de la Garza, and Sharyn O’Halloran, eds., The Future of the Voting Rights Act, New York, Russell Sage Foundation, 2006). 17. For recent overviews, see Harry Holzer and David Neumark, The Economics of Affirmative Action, New York, Edward Elgar, 2004; “Affirmative Action: What Do We Know?” Journal of Policy Analysis and Management, 25 (2), 2006, pp. 463–490. 18. See Sniderman and Carmines, Reaching Beyond Race; Paul Sniderman and Thomas Piazza, The Scar of Race, Cambridge (Mass.), Harvard University Press, 1993; Donald Kinder and Lynn Sanders, Divided by Color: Racial Politics and Democratic Ideals, Chicago, University of Chicago Press, 1996; Charlotte Steeh and Maria Krysan, “Affirmative Action and the Public, 1970–1995,” Public Opinion Quarterly, 60, Spring 1996, pp. 128–158.

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Notes

19. See Cohen, Nagel, and Scanlon, eds., Equality; Robert Fullinwider, The Reverse Discrimination Controversy, Totowa, Rowman and Littlefield, 1980; Alan Goldman, Justice and Reverse Discrimination, Princeton, Princeton University Press, 1979; Michel Rosenfeld, Affirmative Action and Justice: A Philosophical and Constitutional Inquiry, New Haven, Yale University Press, 1991; Steven Cahn, ed., The Affirmative Action Debate, New York, Routledge, 1995. 20. For an elegant and extremely useful introduction, see Gwénaële Calvès, La Discrimination positive, Paris, Presses Universitaires de France, series “Que-Sais-Je,” 2004. For a worldwide and systematically negative overview, see Thomas Sowell, Affirmative Action in the World: An Empirical Study, New Haven, Yale University Press, 2004. On South Africa, see Christopher Ford, “Challenges and Dilemmas of Racial and Ethnic Identity in U.S. and Post-Apartheid South African Affirmative Action,” UCLA Law Review, 43 (6), 1996, pp. 1953–2029; on the United Kingdom, see Steven Teles, “Positive Action or Affirmative Action? The Persistence of Britain’s Antidiscrimination Regime,” in John David Skrentny, ed., Color Lines: Affirmative Action, Immigration, and Civil Rights Options for America, Chicago, University of Chicago Press, 2001, pp. 241–269; on India, see Marc Galanter, Competing Equalities: Law and the Backward Classes in India, Berkeley, University of California Press, 1984; Christophe Jaffrelot, “Inde: l’avènement politique de la caste,” Critique internationale, 17, 2002, pp. 131–144; Nicholas Dirks, “Différence et discrimination: la politique des castes dans l’Inde post-coloniale,” Annales HSS, 3, May–June 1997, pp. 593–619. For comparisons of the U.S., British, and French antidiscrimination regimes, see Robert Lieberman, Shaping Race Policy: The United States in Comparative Perspective, Princeton, Princeton University Press, 2005; Julie Chi-hye Suk, “Equal by Comparison: Facing the Blind Spots of Antidiscrimination Law,” American Journal of Comparative Law, 55 (2), 2007. 21. Tocqueville, Democracy in America, vol. 1, p. 330. 22. See Martin Shapiro, “The Juridicialization of Politics,” International Political Science Review, 15 (2), 1994, pp. 101–112; Gwénaële Calvès, “La Société sous l’emprise du droit. France-États-Unis: deux cultures juridiques,” Cahiers français, 288, 1998, pp. 28–34; Laurent Cohen-Tanugi, Le Droit sans l’État, Paris, Presses Universitaires de France, 1985. 23. The seminal work in this constructivist perspective is the book by Peter Berger and Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge, Garden City, Doubleday, 1966. 24. Jacques Chevallier, “Présentation,” in Centre universitaire de recherches administratives et politiques de Picardie (CURAPP), Droit et politique, Paris, Presses Universitaires de France, 1993, p. 6; “Science du droit et science du politique, ibid., p. 255. 25. Chevallier, “Présentation,” p. 8. 26. See Terence Marshall, “La Raison pratique et le constitutionnalisme américain,” Revue française de science politique, 38 (6), 1988, pp. 887–923. 27. Rosenfeld, Affirmative Action and Justice. 28. See generally Robert Bellah, Richard Madsen, William M. Sullivan, Ann Swidler, and Steven M. Tipton, Habits of the Heart: Individualism and Commitment in American Life, Berkeley, University of California Press, 1985, pp. 250–256. 29. See Kwame Anthony Appiah, “Racial Identity and Racial Identification,” in Les Back and John Solomos, eds., Theories of Race and Racism, London, Routledge, 2000, pp. 607–615. 30. See Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution, New York, Harcourt, 1955. 31. See generally Michael Sandel, Democracy’s Discontent: America in Search of a Public Philosophy, Cambridge (Mass.), Harvard University Press, 1996. 32. Title II of the 1964 Civil Rights Act bans racial discrimination in places of public accommodation, thus more or less reinstating the content of the Civil Rights Act of 1875 which the Supreme Court had invalidated in 1883 (Civil Rights Cases (109 U.S. 3 (1883)). Title VI provides that No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination

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under any program or activity receiving Federal financial assistance.” (United States Congress. Civil Rights Act [1964], Washington, DC, 19 438, Government Printing Office, 1964. 42 U.S.C. Section 2000d) This provision covers nearly all universities, since they benefit from a number of tax exemptions from the federal government. Finally, Title VII makes it unlawful for employers to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. (Civil Rights Act (1964). 42 U.S. Section 2003, § 703 (a) (1)) Of course, this antidiscrimination statute was written so as to leave no doubt as to its universal applicability. While it is surely true that the goal of ending the racial discrimination faced by blacks accounted for the introduction of the civil rights bill on the legislative agenda, the protection granted under this law was extended to any individual, including whites, with the effect of preventively prohibiting affirmative action programs as defined above. Furthermore, section 703 (j) of Title VII explicitly stated that Nothing contained in this title shall be interpreted to require any employer . . . to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin . . . in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area. (U.S. Congress, Civil Rights Act of 1964, Title VII, section 703 (j); 42 U.S.C. § 2000–2 (a) (1982)) 33. On the Supreme Court’s case law derived from the Equal Protection Clause, see generally Michael Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, New York, Oxford University Press, 2004. On the conflicting conceptions of discrimination reflected in the case law on Title VII of the Civil Rights Act and the Equal Protection Clause, see Richard Primus, “Equal Protection and Disparate Impact: Round Three,” Harvard Law Review, 117 (2), 2003, pp. 493–587. While the Supreme Court at first had made a distinction between the substantive dimension of equality supposedly enshrined in the Fourteenth Amendment—which initially did not apply to the federal government—and the mere guarantee of fair procedure enshrined in the Due Process Clause of the Fifth Amendment (which did), since the 1955 Bolling v. Sharpe decision that distinction has lost much of its relevance. Because the Supreme Court, in order to dismantle school segregation in the District of Columbia, a nonstate administrative unit under federal jurisdiction, could not rely on the Fourteenth Amendment, which applied only to states, and thus was unable to ground its decision on the Brown v. Board of Education of Topeka (347 U.S. 483 (1954)) precedent, it then proceeded to incorporate the Equal Protection Clause of the Fourteenth Amendment into the Due Process Clause of the Fifth Amendment, with the effect of making these two constitutional provisions equivalent as far as equality is concerned. Therefore, any action of the federal government that would have been held unconstitutional under the Fourteenth Amendment if a state had been responsible for it is now automatically considered as unconstitutional; see Bolling v. Sharpe, 347 U.S. 497 (1955), pp. 499–500. 34. For a more detailed presentation, see Joseph Tussman and Jacobus tenBroek, “The Equal Protection of the Laws,” California Law Review, 37, 1949, pp. 341–381. 35. Danièle Lochak, “L’Autre saisi par le droit,” in Bertrand Badie and Marc Sadoun, eds., L’Autre: études réunies pour Alfred Grosser, Paris, Presses de Sciences Po, 1996, p. 191. 36. See, for instance, City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), p. 440.

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37. 38. 39. 40.

Ibid., p. 440. See Craig v. Boren, 429 U.S. 190 (1976), p. 197. See Korematsu v. United States, 323 U.S. 214 (1944), p. 216. See San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), pp. 16–17; Shapiro v. Thompson, 394 U.S. 618 (1968), p. 634. As there is obviously no purely objective criterion for distinguishing between a “compelling” purpose and an “important” one, some Supreme Court justices have criticized this method of adjudication based on a “sliding-scale” of different tiers of scrutiny as being too transparently arbitrary; see Craig v. Boren, pp. 211–212 (concurring opinion of Justice John Paul Stevens); San Antonio Independent School District v. Rodriguez, p. 99 (dissenting opinion of Justice Thurgood Marshall). 41. Gerald Gunther, “The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court,” Harvard Law Review, 86, 1972, p. 8.

Part 1

Assessing Justifications for Affirmative Action

1. The mission of the Equal Employment Opportunity Commission (EEOC) is to identify violations of Title VII of the 1964 Civil Rights Act and to take legal action against the party guilty of such violations should attempts at conciliation fail; see generally Nicholas Pedriana and Robin Stryker, “The Strength of a Weak Agency: Enforcement of Title VII of the Civil Rights Act and the Expansion of State Capacity, 1965–1971,” American Journal of Sociology, 110 (3), 2004, pp. 709–760. 2. The Office of Federal Contract Compliance (OFCC) is a subdivision of the Department of Labor set up to ensure that all federal contractors and subcontractors comply with the obligation to implement affirmative action programs that is specifically imposed on them by Executive Orders 10925 (March 6, 1961) and 11246 (September 24, 1965)—as well as to flesh out the content of that requirement. 3. See Skrentny, The Ironies of Affirmative Action, pp. 111–144. 4. See Bernard Boxill, “The Morality of Preferential Hiring,” Philosophy and Public Affairs, 7 (3), 1978, pp. 246–268; Alan Goldman, “Affirmative Action,” Philosophy and Public Affairs, 5 (2), 1976, pp. 178–195; George Sher, “Justifying Reverse Discrimination in Employment,” Philosophy and Public Affairs, 4 (2), 1975, pp. 159–170; Mary Ann Warren, “Secondary Sexism and Quota Hiring,” Philosophy and Public Affairs, 6 (3), 1977, pp. 240–261, as well as the articles later republished in Cohen, Nagel, and Scanlon, eds., Equality. 5. Among federal appeals court decisions, see NAACP v. Allen, 493 F. 2d 614 5th Circuit (1974), pp. 620–621; United States v. Masonry Contractors Association of Memphis, Inc., 497 F. 2d 871 6th Circuit (1974), pp. 877; Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F. 2d 9 First Circuit (1973), pp. 18.

Chapter One

The Corrective Justice Paradigm

1. See James Nickel, “Discrimination and Morally Relevant Characteristics,” in Cahn, ed., The Affirmative Action Debate, pp. 3–4. 2. City of Richmond v. J.A. Croson Co., 109 S. Ct. 706 (1989), p. 739 (concurring opinion of Justice Scalia; his emphasis). 3. That distinction is made in Nickel, “Discrimination and Morally Relevant Characteristics,” p. 4. 4. See generally John Torpey, Making Whole What Has Been Smashed: On Reparations Politics, Cambridge (Mass.), Harvard University Press, 2006.

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5. See Cass Sunstein, The Partial Constitution, Cambridge (Mass.), Harvard University Press, 1993, p. 319. 6. Robert Nozick, Anarchy, State, and Utopia, New York, Basic Books, 1974, p. 57. 7. See James Nickel, “Should Reparations Be to Individuals or Groups?” Analysis, 34 (5), 1973, pp. 154–160. 8. Regents of the University of California v. Bakke, 438 U.S. 265 (1978), pp. 377–378 (emphasis added). 9. See City of Richmond v. J. A. Croson Co., 109 S.Ct. 706 (1989), p. 729. 10. In addition to the Civil Rights Act of 1964, federal antidiscrimination statutes include the Voting Rights Act of 1965—designed to protect the voting rights of southern blacks and thereby enforce the Fifteenth Amendment of 1870—and the Fair Housing Act of 1968. 11. In this connection, see generally Eric A. Posner and Adrian Vermeule, “Reparations for Slavery and Other Historical Injustices,” Columbia Law Review, 103 (3), 2003, pp. 689–747. 12. Regents of the University of California v. Bakke, p. 400 (Justice Marshall’s separate opinion). 13. See, for example, Randall Robinson, The Debt: What America Owes to Blacks, New York, Dutton, 2000. 14. Before slavery was abolished by the Thirteenth Amendment (1865), one of the most frequently made arguments for the “peculiar institution” presented the enslavement of blacks as a divine punishment inflicted on the entire race to attune for the sins of Ham, their alleged ancestor; see George Fredrickson, Racism: A Short History, Princeton, Princeton University Press, 2002, pp. 43–45, 51–52; David M. Goldenberg, The Curse of Ham: Race and Slavery in Early Judaism, Christianity, and Islam, Princeton, Princeton University Press, 2003; Stephen R. Haynes, Noah’s Curse: The Biblical Justification of American Slavery, Oxford, Oxford University Press, 2002. 15. Goldman, Justice, p. 104. 16. Ibid, p. 104. In that case, the functional division of labor is such that one individual threatens the cashier, another one grabs the money, yet another one waits outside in the getaway car, and so on. 17. Thomas Nagel, “Introduction,” in Cohen, Thomas, and Scanlon, eds., Equality, pp. ix–x (italics in the text). Nagel himself does not endorse this argument. 18. This argument was made by Judith Jarvis Thompson in her article “Preferential Hiring,” in Cohen, Nagel, and Scanlon, eds., Equality, p. 152. In Fullilove v. Klutznick, the Supreme Court did seem to endorse it by holding that Congress could legitimately act on “the assumption that in the past some nonminority businesses may have reaped competitive benefit over the years from the virtual exclusion of minority firms from these contracting opportunities” (Fullilove v. Klutznick, 448 U.S. 448 (1980), p. 485; majority opinion of Chief Justice Burger), within the frame of a decision upholding an affirmative action program. Later decisions did not confirm this endorsement, however. 19. See Bernard Williams, Making Sense of Humanity: And Other Philosophical Papers, 1982–1993, Cambridge, Cambridge University Press, 1995, p. 40. 20. See Ian Carter, “ ‘Ought’ implies ‘Practical Possibility,’ ” in Ian Carter and Mario Ricciardi, eds., Freedom, Power, and Political Morality: Essays for Felix Oppenheim, London, Palgrave Macmillan, 2001, pp. 79–95. 21. Antonin Scalia, “The Disease as Cure: ‘In Order to Get Beyond Racism, We Must First Take Account of Race,’” in Russell Nieli, ed., Racial Preference and Racial Justice, Washington, DC, Ethics and Public Policy Center, 1991, p. 216. 22. See generally Ira Katznelson, When Affirmative Action Was White: An Untold History of Racial Inequality in Twentieth-Century America, New York, Norton, 2005. 23. As a practical matter, it is not possible to undertake a systematic study of the economic profile of the “victims” of affirmative action, if only because the administrative services involved usually do not record their identity. Yet, most individuals who did file a lawsuit to challenge the legality of an affirmative action program by which they felt wrongly disadvantaged were of working-class extraction. The working class has been disproportionately affected by the policy

176

24. 25.

26.

27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

38.

39. 40.

Notes

in part because of the conjunction of the fact that immigrants (regardless of citizenship) are eligible for affirmative action and that their average level of qualification has declined over the last quarter-century (see George Borjas, Heaven’s Door: Immigration Policy and the American Economy, Princeton, Princeton University Press, 1999, pp. 19–38). See Jon Elster, Local Justice: How Institutions Allocate Goods and Necessary Burdens, Cambridge, Cambridge University Press, 1992, p. 199. Before 1991, only victims of racial discrimination were eligible for these “punitive damages and interests” under a statute of the Reconstruction era (42 U.S.C. Civil Rights Act of 1866, section 1981). Individuals discriminated against on other unlawful grounds could only benefit from “make-whole provisions.” That distinction was eliminated by the Civil Rights Act of 1991, which unified the set of provisions to be implemented in favor of victims of intentional discrimination in violation of the 1964 Civil Rights Act, regardless of which criterion was illegally taken into account. Yet, instances of indirect and unintentional discrimination—that is, when identifiable employment practices only have a disparate impact on the members of certain “protected classes”—cannot justify the award of “punitive damages and interests” (even though they come within the purview of Title VII of the Civil Rights Act: see supra, pp. 118–124). See Elster, Local Justice, p. 200; see also George Sher, “Trangenerational Compensation,” Philosophy and Public Affairs, 33 (2), 2005, pp. 181–200; Janna Thompson, “Historical Injustice and Reparation: Justifying Claims of Descendants,” Ethics, 112 (1), 2001, pp. 114–135; Renée A. Hill, “Compensatory Justice: Over Time and between Groups,” Journal of Political Philosophy, 10 (4), 2002, pp. 392–415. Elster, Local Justice, p. 195 (italics in the text). See also Jon Elster, “Ethical Individualism and Presentism,” The Monist, 76, 1993, pp. 333–348. Nozick, Anarchy. In addition to the following developments, see Jeremy Waldron, “Superseding Historical Injustice,” Ethics, 103 (1), 1992, pp. 4–28. See Nozick, Anarchy, pp. 155–157. Raymond Boudon, Effets pervers et ordre social, Paris, Presses Universitaires de France, 1977, p. 12. See Nozick, Anarchy, pp. 160, 163. Elster, Local Justice, p. 230. Nozick, Anarchy, p. 154. Sandel, Liberalism, p. 108. See Christopher Morris, “Existential Limits to the Rectification of Past Wrongs,” American Philosophical Quarterly, 21, 1984, pp. 175–178. See Nozick, Anarchy, p. 231. As much is shown by the failure of the attempt made in 1978 by Jimmy Carter’s administration to bring Congress to curtail the preferences given to veterans in the civil service, which arguably did not serve a legitimate purpose anymore; see Fullinwider, The Reverse Discrimination Controversy, p. 249. See, for example, Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, New York, Oxford University Press, 1995, p. 32; Amy Gutmann, “Justice across the Spheres,” in David Miller and Michael Walzer, eds., Pluralism, Justice, and Equality, Oxford, Oxford University Press, 1995, pp. 105, 110. Bill Clinton, “Mend It, Don’t End It,” reprinted in George Curry and Cornel West, eds., The Affirmative Action Debate, Reading, Addison-Wesley, 1996, p. 274. For instance, in a concurring opinion in United Steelworkers v. Weber (443 U.S. 193 (1979) ), Justice Blackmun defended the affirmative action plan under challenge by pointing out that it was only a “temporary measure, not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance” resulting from past discrimination (p. 208). Similarly, in Metro Broadcasting, Inc. v. Federal Communications Commission et al. (497 U.S. 547 (1990) ), the fact that

Notes 41. 42. 43. 44.

45. 46. 47.

48. 49. 50.

51. 52. 53.

54.

55. 56. 57.

177

the program under scrutiny had to be reviewed before it could be extended in time was seen as a positive feature (see pp. 594, 595–596). United States v. Paradise, 480 U.S. 149 (1987), p. 192 (concurring opinion of Justice Stevens). In this connection, see Thomas Schelling, Choice and Consequence, Cambridge (Mass.), Harvard University Press, 1984, p. 1. See generally Thomas Schelling, The Strategy of Conflict, Cambridge (Mass.), Harvard University Press, 1960, p. 111 See supra, pp. 118–124. Later on, the Supreme Court qualified its position in this respect. In International Brotherhood of Teamsters v. United States (431 U.S. 324 (1977)), the Court confirmed that an approximately proportional representation of blacks in unskilled or low-skilled jobs could be seen as the logical counterpart of the eradication of racial discrimination contemplated in Title VII of the Civil Rights Act; in that case, defining as the benchmark the percentage of blacks within the entire working population of a given area in order to measure the imbalance to be remedied within the workforce of a specific firm was indeed appropriate. Yet, in Hazelwood School District v. United States (433 U.S. 299 (1977)), it was also made clear that “when special qualifications are required to fill particular jobs, comparisons to the general population (rather than to the smaller group of individuals who possess the necessary qualifications) may have little probative value” (p. 308, fn.13). Regents of the University of California v. Bakke, pp. 365–366. International Brotherhood of Teamsters v. United States, p. 372. Among the many scholars who apparently consider this racial proportionality standard as an appropriate benchmark for defining what “compensation” requires, see, for instance, Laurence Tribe, American Constitutional Law, New York, Foundation Press, 1988 [1978], p. 1532, fn.44; Kenneth Karst, Belonging to America: Equal Citizenship and the Constitution, New Haven, Yale University Press, 1989, p. 135. Frederick Douglass, “Letter to Martin Delany,” in Philip S. Foner, ed., The Life and Writings of Frederick Douglass, New York, International Publishers, 1955, p. 280. Brian Barry, Justice as Impartiality, Oxford, Clarendon Press, 1995, p. 270. Owen Fiss, “The Fate of an Idea Whose Time Has Come: Antidiscrimination Law in the Second Decade after Brown v. Board of Education,” University of Chicago Law Review, 41 (4), 1974, p. 779. See generally Anne Phillips, “Defending Equality of Outcome,” Journal of Political Philosophy, 12 (1), 2004, pp. 1–19. See Thomas Sowell, “Weber and Bakke and the Presuppositions of ‘Affirmative Action,’ ” Wayne Law Review, 26, July 1980, pp. 1314–1315. See June O’Neill and Dave O’Neill, “Affirmative Action in the Labor Market,” Annals of the American Academy of Political and Social Science, 523, 1992, p. 102; June O’Neill, “The Role of Human Capital in Earnings Difference between Black and White Men,” Journal of Economic Perspectives, 4 (4), 1990, pp. 24–45; James Heckman, Tom Lyons, and Petra Todd, “Understanding Black-White Wage Differentials, 1960–1990,” American Economic Review, 90 (2), 2000, pp. 344–349. Of course, wage setting is not the only operation where discrimination may come into play in the employment context. See Glazer, Ethnic Dilemmas: 1964–1982, Cambridge (Mass.), Harvard University Press, 1983, pp. 57, 186–208; Glenn Loury, “Why Should We Care about Group Inequality?” Social Philosophy and Policy, 5 (1), 1987, pp. 249–271. See Christopher Jencks, Rethinking Social Policy, Cambridge (Mass), Harvard University Press, 1992, p. 28. See Ronald Fiscus, The Constitutional Logic of Affirmative Action, Durham, Duke University Press, 1992, pp. XI, 24. See, for example, Richard Wasserstrom, Philosophy and Social Issues: Five Studies, Notre Dame, University of Notre Dame, 1980, p. 15.

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Notes Chapter Two

The Diversity Paradigm

1. See Reed Ueda, Postwar Immigrant America: A Social History, New York, St. Martin’s Press, 1994, pp. 64–71; Hugh Davis Graham, Collision Course: The Strange Convergence of Affirmative Action and Immigration Policy in America, New York, Oxford University Press, 2002. 2. See Regents of the University of California v. Bakke, pp. 274, 276–277. 3. Title VI of the Civil Rights Act prohibits discrimination based on race by educational institutions receiving funds from the federal government. As a matter of fact, almost all universities, including obviously a state university such as the University of California, receive funds from the federal government. 4. Generally, justices tend to avoid ruling on constitutional questions when they can settle the dispute at hand based on statutory law: see Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), pp. 347–348 (concurring opinion of Justice Louis Brandeis). 5. See Regents of the University of California v. Bakke, p. 359. 6. Ibid., p. 290. 7. Ibid., pp. 312, 314, 317–318 (opinion of Justice Powell). 8. By and large, the Bakke decision was greeted as a victory by the supporters of affirmative action, since most of the programs then in effect in American universities did not use explicit quotas. Besides, all those that were challenged in the aftermath of the 1978 ruling were upheld by the lower courts: see, for example, DiLeo v. Board of Regents of the University of Colorado, 196 Colo. 216, 590 P. 2d 486 Colo. (1978); McAdams v. Regents of the University of Minnesota, 508 F. Supp. 354 D. Minn. (1981). 9. See Regents of the University of California v. Bakke, pp. 308–310. 10. Ibid., p. 306. 11. In this respect, see chapter 3. 12. The remarkably high rate of in-group marriage among black Americans also works toward the extension of affirmative action benefits to all members of the group. Thus, in 1998, only 5 percent of married black individuals were married to a member of another ethnoracial group—as compared to 16.7 percent of Hispanics and 15 percent of Asians (see Amitai Etzioni, The Monochrome Society, Princeton, Princeton University Press, 2001, p. 25, and, for a broader historical overview, Aaron Gullickson, “Black-White Interracial Marriage Trends, 1850–2000,” Journal of Family History, 31 (3), 2006, pp. 289–312). 13. This is the objection that Powell views as decisive: see Regents of the University of California v. Bakke, pp. 310–311. 14. Ibid., pp. 369–373. 15. United States v. Carolene Products, 304 U.S. 144 (1938). 16. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge (Mass.), Harvard University Press, 1980. The author was a former clerk of Chief Justice Earl Warren. Although the abovementioned book was published in 1980, his first important articles were written before the Bakke decision, including John Hart Ely, “The Constitutionality of Reverse Racial Discrimination,” University of Chicago Law Review, 41, Summer 1974, pp. 723–741. 17. Gwénaële Calvès, L’Affirmative action dans la jurisprudence de la Cour suprême: le problème de la discrimination “positive,” Paris, LGDJ, 1998, p. 289. 18. See generally Arthur Bentley, The Process of Government, Chicago, University of Chicago Press, 1908; David Truman, The Governmental Process, New York, Knopf, 1971 [1951]. 19. See Ely, Democracy and Distrust, pp. 78–82. 20. See Tocqueville, Democracy in America, vol. 1, pp. 319–332. 21. See Ely, Democracy and Distrust, p. 82. 22. See John Hart Ely, “The Constitutionality of Reverse Racial Discrimination,” pp. 728–733, 735. 23. Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986), p. 1869 (dissenting opinion of Justice Stevens; italics in the text).

Notes 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40.

41.

42.

43. 44.

45. 46. 47. 48.

179

See Ely, Democracy and Distrust, pp. 170–171. See supra, p. 170, note 15. See Yick Wo v. Hopkins, 118 U.S. 356 (1886), p. 369. See Ely, Democracy and Distrust, pp. 158–160. Regents of the University of California v. Bakke, p. 295 (the quotes around “majority” are in the original text). Ibid., p. 292. Ibid., p. 295 (the quotes around “majority” and “minority” are in the original text). Ibid., p. 296. Ibid., p. 297. Ibid., pp. 296–297. Ibid., p. 297. Ibid., p. 294, fn.34. Ibid., pp. 299, 297. Ibid., p. 297. Pierre Bourdieu, “La Force du droit. Éléments pour une sociologie du champ juridique,” Actes de la recherche en sciences sociales, 84, 1986, p. 4. West Coast Hotel Company v. Parrish, 300 U.S. 379 (1937), p. 400 (Justice Hughes’ majority opinion). See Mae M. Ngai, “The Architecture of Race in American Immigration Law: A Reexamination of the Immigration Act of 1924,” Journal of American History, 86, June 1999, pp. 67–92 ; Aristide Zolberg, A Nation by Design: Immigration Policy in the Fashioning of America, Cambridge (Mass.), Harvard University Press; New York, Russell Sage Foundation, 2006, pp. 199–292; Daniel Tichenor, Dividing Lines: The Politics of Immigration Control in America, Princeton, Princeton University Press, 2002, pp. 114–149, 219–241. In 2000, people born abroad made up 11 percent of the United States population (much more than in 1970 (4.7 percent), yet significantly less than in 1910 (14.7 percent)), while this proportion was 20 percent in Canada and 25 percent in Australia (see Frank D. Bean, Susan K. Brown, and Rubén G. Rumbaut, “Mexican Immigrant Political and Economic Incorporation,” Perspectives on Politics, 4 (2), 2006, p. 309; Campbell J. Gibson and Emily Lennon, “Historical Census Statistics on the Foreign-Born Population of the United States: 1850–1990,” at http://www.census.gov/ population/www/documentation/twps0029/twps0029.html, accessed on March 20, 2007). See David Hollinger, “Group Preferences, Cultural Diversity, and Social Democracy,” in Robert Post and Michael Rogin, eds., Race and Representation: Affirmative Action, New York, Zone Books, 1998, p. 106. In 1997, among the 25,779,000 people of foreign birth living in the United States, 44 percent were Hispanic and 23 percent Asian (see U.S. Census Bureau, Statistical Abstract of the United States: 1999, p. 54, table 55). About half of the immigrants registered between 1965 and 1995 came from seven countries—Mexico, the Philippines, China, Vietnam, South Korea, India, and the Dominican Republic—whose nationals today are included in either one of these two categories of affirmative action beneficiaries. See Hollinger, Postethnic America, pp. 19–50. See United States Bureau of the Census, U.S. Department of Commerce, Census of Population, 1960, Washington, DC, U.S. Government Printing Office, 1964, p. 145 (table 44); United States Bureau of the Census, U.S. Department of Commerce, 1990 Census of Population, Washington, DC, U.S. Government Printing Office, 1990, p. 323 (table 253). See Regents of the University of California v. Bakke, p. 292 (opinion of Justice Powell). See John Stuart Mill, “On Liberty,” in On Liberty and Other Writings, Stephan Collini, ed., Cambridge, Cambridge University Press, 1989 [1859], pp. 23–24. Regents of the University of California v. Bakke, p. 314. Ibid., p. 312 (this is a quote from Justice Felix Frankfurter’s concurring opinion in Sweezy v. New Hampshire, 385 U.S. 589 (1957), p. 603).

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Notes

49. See Regents of the University of California v. Bakke, pp. 321–322 (appendix to Justice Powell’s opinion). 50. Ibid., p. 323 (emphasis added). 51. Ibid., p. 313 (Justice Powell’s opinion). 52. Neil Rudenstine, “The Uses of Diversity,” Harvard Magazine, March–April 1996, p. 50. 53. Wygant v. Jackson Board of Education, 106 S.Ct. 1842 (1986), p. 1869 (dissenting opinion of Justice Stevens). 54. Metro Broadcasting, Inc v. Federal Communications Commission, 497 U.S. 547 (1990). 55. Ibid., pp. 564–565 (majority opinion of Justice Brennan). 56. Ibid., pp. 566–567. 57. Ibid., p. 556. 58. Ibid., pp. 567–568. 59. See Regents of the University of California v. Bakke, p. 379. 60. Metro Broadcasting, Inc v. Federal Communications Commission, pp. 567–568. 61. Ibid., p. 579. 62. Ibid., pp. 589–590, fn.42. 63. In the Adarand v. Pena decision of 1995, the Supreme Court partly overruled Metro Broadcasting, but only regarding the degree of judicial scrutiny applicable to racial classifications used by the federal government—not as to whether the diversity argument can meet the requirements of strict scrutiny from then on imposed on all racial classifications, regardless of which (public) decision-making body they originate in; see Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995), pp. 2112–2114. 64. See Kathleen M. Sullivan, “The Supreme Court, 1986 Term__Comment: Sins of Discrimination: Last Term’s Affirmative Action Cases,” Harvard Law Review, 100, 1986, pp. 89, 94. 65. This point is further developed in chapter 3. 66. See Schelling, The Strategy of Conflict, pp. 54–58. 67. For a broader critique, see Peter Schuck, Diversity in America: Keeping Government at a Safe Distance, Cambridge (Mass.), Harvard University Press, 2003. 68. See Ronald Dworkin, A Matter of Principle, Cambridge (Mass.), Harvard University Press, 1985, pp. 313–314, from which the following development derives. 69. Regents of the University of California v. Bakke, p. 307; p. 294, fn.34. 70. Ibid., pp. 316–318. 71. Ibid., p. 312. 72. See Will Kymlicka, Multicultural Citizenship, pp. 122–123. Obviously, Powell is aware of this difficulty, and he tries to counter that objection by pointing out that the benefits of “diversity” cannot be precisely identified, given the “informal” and “subtle” nature of the exchanges that it would help bring about; see Regents of the University of California v. Bakke, p. 313, fn.48. Similarly, Sanford Levinson notes that “race and ethnicity . . . may act as proxies, not so much for holding specific views, but for the probability of being deeply interested (and at least somewhat knowledgeable) in . . . those issues most germane to the group in question,” keeping in mind that “one of these issues might be whether there are specific issues that are necessarily germane to the group” (Sanford Levinson, Wrestling with Diversity, Durham, Duke University Press, 2003, p. 40; italics in the text). 73. In this connection, see Patricia Gurin, Jeffrey Lehman, and Earl Lewis, Defending Diversity: Affirmative Action at the University of Michigan, Ann Arbor, University of Michigan Press, 2004. 74. See Glazer, Ethnic Dilemmas, pp. 249–271. 75. See Abigail Thernstrom and Stephan Thernstrom, America in Black and White: One Nation, Indivisible, New York, Simon and Schuster, 1997, pp. 402–403. 76. Regents of the University of California v. Bakke, p. 324 (appendix to Justice Powell’s opinion).

Notes

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77. See, for example, Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), a case mentioned in this connection in an insightful article by Linda Hamilton Krieger and Susan Fiske, “Behavioral Realism in Employment Discrimination Law: Implicit Bias and Disparate Treatment,” California Law Review, 94 (4), 2006, p. 1032. 78. Amartya Sen, Inequality Reexamined, Cambridge (Mass.), Harvard University Press; New York, Russell Sage Foundation, 1992, p. 43. 79. The Supreme Court has held in a number of decisions that neither the lawyers for the parties involved in a lawsuit nor the judge were allowed to challenge a juror solely on the ground that her race might increase the risk of partiality on her part, regardless of whether that belief was empirically supported; see Batson v. Kentucky, 476 U.S. 79 (1986) (a decision in which the majority opinion was also authored by Justice Powell), Powers v. Ohio, 499 U.S. 400 (1990), Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), Georgia v. McCollum, 505 U.S. 42 (1992). 80. For an exception, see Richard Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws, Cambridge (Mass.), Harvard University Press, 1992.

Chapter Three

A Strategic and Consequentialist Perspective

1. On contemporary egalitarianism, see generally Elizabeth S. Anderson, “What is the Point of Equality?” Ethics, 109 (2), 1999, pp. 287–337; John Roemer, Equality of Opportunity, Cambridge (Mass.), Harvard University Press, 1998; Samuel Scheffler, “What is Egalitarianism?” Philosophy and Public Affairs, 31 (1), 2003, pp. 5–39; Michael Walzer, Politics and Passion: Toward a More Egalitarian Liberalism, New Haven, Yale University Press, 2006. 2. For its most recent presentation, see Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality, Cambridge (Mass.), Harvard University Press, 2000. 3. Chaim Perelman, Justice et raison, Bruxelles, Presses Universitaires de Bruxelles, 1963, p. 26. 4. Ibid., pp. 25–27, 38–39; H. L. A. Hart, The Concept of Law, Oxford, Clarendon Press, 1961, pp. 153–163. 5. See Peter Westen, “The Empty Idea of Equality,” Harvard Law Review, 95 (3), 1982, p. 551. 6. See Perelman, Justice et raison, pp. 52–53. 7. Rawls, A Theory of Justice, p. 58. 8. On the distinction between “concept” and “conception,” see Ronald Dworkin, Taking Rights Seriously, Cambridge (Mass.), Harvard University Press, 1977, pp. 134–136. 9. The “focal variable” is the variable that, under a given theory of equality, one ought to distribute as equally as possible before equalizing anything else, even though this necessarily leads to greater inequality in the distribution of other (“peripheral”) variables; see Sen, Inequality, pp. 2–3. 10. Dworkin, Taking Rights Seriously, p. 227. 11. Ibid. 12. In Dworkin’s terminology, the “rule” prescribes what one ought to do in a certain kind of situations, whereas the “principle” states the reason accounting for the enactment of the rule (ibid., pp. 22–28, 71–80). 13. Ibid., p. 273. 14. Ibid., p. 227. 15. See Palmer v. Thompson, 403 U.S. 217 (1971), pp. 219–221. 16. See Paul Brest, “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive,” Supreme Court Review, 95, 1971, pp. 95–146; “The Supreme Court, 1975 Term—Foreword: In Defense of the Antidiscrimination Principle,” Harvard Law Review, 90 (1), 1976, pp. 1–54. 17. Dworkin, Taking Rights Seriously, p. 149.

182 18. 19. 20. 21.

22.

23. 24.

25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

37.

38. 39. 40. 41. 42.

Notes

See Ely, Democracy and Distrust, pp. 86–87. Ibid., pp. 87–88, 102–103. Ibid., p. 103. Ibid., pp. 82, 136. “. . . unconstitutionality in the distribution of benefits that are not themselves constitutionally required can intelligibly inhere only in the way the distribution was arrived at” (p. 145). Here Ely transposes one of the main features of Nozick’s conception of justice from the field of political theory to that of constitutional law, a transposition that he makes explicit (p. 136) and that is somehow symmetrical to the way Dworkin uses some “Rawlsian” arguments: see supra, pp. 24, 56–57. That criterion is useful only when the good the denial of which to the plaintiff works as a triggering factor of the lawsuit is not explicitly guaranteed to her by the Constitution. When it is, as in some cases other than those involving the distribution of resources affected by affirmative action (jobs, college admissions, public contracts), the reason why this good has not been obtained is irrelevant, since the plaintiff has a right to it. That reason becomes decisive when one must determine whether the distribution of a good that, in itself, is not the object of a constitutional right, nonetheless ought to be struck down as unconstitutional (ibid, p. 145). Ibid., p. 152 (emphasis added). Surely, this condition is not always met. To consider but one of the most obvious examples, although burglars may be a “group” that encounters much hostility, there is no reason to hold unconstitutional the laws against burglary. In that case, the differential treatment between “insiders” and “outsiders” is so obviously legitimate that the very notion that it might awaken suspicion seems contrived; see Ely, Democracy and Distrust, p. 154. Ibid., p. 82. Rogers M. Smith, Liberalism and American Constitutional Law, Cambridge (Mass.), Harvard University Press, 1985, p. 174. See Nozick, Anarchy, p. 48. Rawls, A Theory of Justice, p. 505. Charles Larmore, Patterns of Moral Complexity, Cambridge, Cambridge University Press, 1987, p. 65. Dworkin, Taking Rights Seriously, p. 272. See Nozick, Anarchy, pp. 28–30. Dworkin, Taking Rights Seriously, p. 269. Ibid., p. 271. See Ronald Dworkin, A Matter of Principle, p. 359; Taking Rights Seriously, p. 269. See Rawls, A Theory of Justice, p. 43. See Dworkin, A Matter of Principle, p. 298; Sovereign Virtue, p. 389. Here Dworkin transposes Rawls’ idea that the utilitarian principle should prevail only at the legislative stage and not at the initial step of identifying the principles of justice by which the very structure of social institutions ought to be governed; see Rawls, A Theory of Justice, p. 324. In this respect, see Michael Selmi, “Testing for Equality: Merit, Efficiency, and the Affirmative Action Debate,” UCLA Law Review, 42 (5), 1995, pp. 1251–1314; Lani Guinier and Susan Sturm, “The Future of Affirmative Action: Reclaiming the Innovative Ideal,” California Law Review, 84 (4), 1996, pp. 953–1036. See Dworkin, A Matter of Principle, p. 299; Rawls, A Theory of Justice, pp. 72, 310–315. See William Galston, Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State, New York, Cambridge University Press, 1992, pp. 200–201. Dworkin, Taking Rights Seriously, p. 225. Dworkin, A Matter of Principle, pp. 299–300. The notion of “stereotype” is of little utility in this respect. As a matter of fact, unless it is ascribed an entirely pejorative value, with one labeling as such only those judgments held to be deficient with respect to a requirement of minimal reliability, the “admittedly imperfect comparative generalizations” (Ely, Democracy and Distrust, pp. 155–156) that one calls “stereotypes” are not only legally admissible in most cases, but necessary to legislation itself. Legislation must rely

Notes

43.

44.

45.

46. 47.

48. 49. 50.

51. 52. 53.

54. 55. 56. 57. 58. 59. 60. 61.

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on classifications that ignore individual deviations with respect to the statistical pattern on the existence of which they are predicated. A substantive criterion is needed, then, to distinguish between permissible and impermissible stereotypes. See Alexander Bickel, “The Original Understanding and the Segregation Decisions,” Harvard Law Review, 69 (1), 1955, pp. 1–65; Eric Schnapper, “Affirmative Action and the Legislative History of the Fourteenth Amendment,” Virginia Law Review, 71, 1985, pp. 753–798. See Dworkin, A Matter of Principle, pp. 38–57. For a counterargument, see Keith Whittington, “Dworkin’s ‘Originalism’: The Role of Intentions in Constitutional Interpretation,” Review of Politics, 62, Spring 2000, pp. 197–229. For a recent attempt at defining some kind of middle ground between originalism and the Dworkinian approach of constitutional theorizing, see Jed Rubenfeld, Revolution by Judiciary: The Structure of American Constitutional Law, Cambridge (Mass.), Harvard University Press, 2005. In Brown (347 U.S. 483 (1954)), the Supreme Court eventually held that segregation of schools on the basis of race was a violation of the Equal Protection Clause of the Fourteenth Amendment, in contradistinction to its 1896 Plessy v. Ferguson decision (163 U.S. 537 (1896)); see generally Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America’s Struggle for Equality, New York, Vintage, 1977, James Patterson, Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy, New York, Oxford University Press, 2001, Jack Balkin, ed., What Brown v. Board of Education Should Have Said, New York, New York University Press, 2001, as well as the symposium published in the Journal of American History in 2004 (91 (1)). See Sniderman and Piazza, The Scar of Race, p. 134. Frontiero v. Richardson, 411 U.S. 677 (1973), p. 686 (citing Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972)). One will find other similar quotes in Lockhart v. McCree, 476 U.S. 162 (1986), p. 175; Bowen v. Gilliard, 483 U.S. 587 (1987), p. 602. In addition to what follows, see also Donald Braman, “Of Race and Immutability,” UCLA Law Review, 46, 1999, pp. 1375–1463. See Terrance Sandalow, “Racial Preferences in Higher Education: Political Responsibility and the Judicial Role,” University of Chicago Law Review, 42 (4), 1975, p. 666. Dworkin, A Matter of Principle, p. 301 (italics in the text). Ibid., pp. 300–302; see also Reva Siegel, “Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown,” Harvard Law Review, 117 (5), 2004, pp. 1470–1547. Strauder v. West Virginia, 100 U.S. 303 (1879), pp. 307–308 (emphasis added). Plessy v. Ferguson, p. 551. Korematsu v. United States, p. 216 (emphasis added). In this 1944 decision the court upheld the forced transfer and internment of all individuals of Japanese extraction living on the West Coast of the United States in concentration camps that had been ordered by President Franklin Roosevelt following the attack on Pearl Harbor; see generally Greg Robinson, By Order of the President: FDR and the Internment of Japanese Americans, Cambridge (Mass.), Harvard University Press, 2001. See Brown v. Board of Education of Topeka, p. 494. See Ronald Dworkin, Law’s Empire, Cambridge (Mass.), Harvard University Press, 1986, pp. 383–385, 388. See Dworkin, A Matter of Principle, p. 66. Ibid., pp. 301–302. Ibid., p. 302. The term “deracialization” is mine, although I believe that it is consistent with Dworkin’s argument detailed below. Dworkin, A Matter of Principle, p. 294. I borrow this expression from John Searle; see John Searle, The Construction of Social Reality, New York, The Free Press, 1995, p. 119.

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Notes

62. Dworkin, A Matter of Principle, p. 294. 63. Ibid., pp. 294, 295 (emphasis added). If such is the goal assigned to affirmative action, it cannot be achieved by a simple transfer of financial resources. Dworkin’s intuition here is similar to that of historian George Fredrickson, who points out that “racism has a life of its own, but not in the sense that it could persist without gradually losing its strength in the face of some dramatic and lasting improvement . . . of the disadvantaged . . . group’s living standards.” Fredrickson therefore suggests adopting “a model of change through interaction and feedback”: “increases in power affect attitudes, and alterations in attitudes give access to power.” (George Fredrickson, “Une Histoire comparée du racisme: réflexions générales,” in Michel Wieviorka, ed., Racisme et modernité, Paris, La Découverte, 1993, p. 47). 64. In this vein, see, for instance, Iris Marion Young, Justice and the Politics of Difference, Princeton, Princeton University Press, 1990, pp. 199–200. 65. Erving Goffman, Stigma: Notes on the Management of Spoiled Identity, Englewood Cliffs, Prentice-Hall, 1963, p. 44. 66. This is a phrase used by Talcott Parsons in his introduction to the volume that he coedited with Kenneth Clark, The Negro American (Boston, Beacon Press, 1965, p. XXIV). 67. See generally Laurie A. Rudman, Richard D. Ashmore, and Melvin L. Gary, “‘Unlearning’ Automatic Biases: The Malleability of Implicit Prejudice and Stereotypes,” Journal of Personality and Social Psychology, 81 (5), 2001, pp. 856–868; Brian Lowery, Curtis Hardin, and Stacey Sinclair, “Social Influence Effect on Automatic Racial Prejudice,” Journal of Personality and Social Psychology, 81 (5), 2001, pp. 842–855; Jennifer Richeson and Nalini Ambady, “Effects of Situational Power on Automatic Racial Prejudice,” Journal of Experimental Social Psychology, 39, 2003, pp. 177–183. 68. Etienne Schweisguth, “Racisme et systèmes de valeurs,” in Michel Wieviorka, ed., Racisme et modernité, p. 130. 69. André Petitat, Secret et formes sociales, Paris, Presses Universitaires de France, 1998, p. 172. 70. See Dworkin, Taking Rights Seriously, p. 239. 71. Considering the first of these two decisions, a case can be made, along with Michael Sandel, that the utilitarian dimension of Dworkin’s argument presupposes a conception of the community within which achieving the goal of deracialization can legitimately be defined as a collective good, a good the realization of which carries costs that are unequally distributed yet must be borne as a kind of citizenship requirement. It seems that, for Dworkin, this community, that is the space within which utilitarian calculations are made and solidarity organized by mechanisms of mutual obligation, can only be the nation-state, although he does not elaborate on that point (see Sandel, Liberalism, pp. 144–146). As for the “communitarian” perspective on affirmative action outlined by Sandel, whether it should lead one to consider the overwhelming attachment of members of the American political community to the meritocratic principle and the persistent unpopularity of race-based preferential treatment in employment and higher education as a decisive argument against the policy remains unclear. 72. Albert Hirschman, The Rhetoric of Reaction: Perversity, Futility, Jeopardy, Cambridge (Mass.), Harvard University Press, 1991. 73. This argument is distinguished from two other ones, also presented as Weberian ideal types: the assertion of a reform’s futility, given the unmalleability of a social world perceived as “evolving according to immanent laws” naturally oriented toward the preservation of the status quo, which in all likelihood will prevent the policy change from having any effect whatsoever (ibid., pp. 72; 10–11); and, contradictorily, the perversity argument that purports to identify the countless negative side effects (that is consequences exactly contrary to the goal pursued) that the reform would be bound to trigger, given the “volatile” nature of society (ibid., p. 72 (italics in the original)). 74. See, for example, Carl Cohen, Naked Racial Preference, Lanham, Madison, 1995, pp. 1–5. 75. See supra, p. 6.

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76. Palmore v. Sidoti, 466 U.S. 329 (1982). The analysis that follows is derived from that of David Strauss in “The Myth of Colorblindness,” pp. 101–106. 77. Palmore v. Sidoti, p. 431. 78. Ibid., p. 433. 79. Along this line, see, for example, Glenn Loury, “Individualism before Multiculturalism,” Harvard Journal of Law and Public Policy, 19 (3), 1996, p. 729; New York Times, December 22, 1997, pp. A–16 (intervention by the Republican Representative of Florida Charles Canady during a panel discussion on affirmative action held at the White House). 80. Metro Broadcasting v. Federal Communications Commission, p. 609. 81. Bakke v. Regents of the University of California, 18 Cal. 3934, p. 63 (decision of the California Court of Appeal). 82. See Jennifer Roback, “The Separation of Race and State,” Harvard Journal of Law and Public Policy, 14 (1), 1991, pp. 58–64. 83. See Hollinger, Postethnic America, pp. 123–124. 84. See generally Denis Lacorne, La Crise de l’identité américaine: du melting-pot au multiculturalisme, Paris, Fayard, 1997. 85. Jean Leca, “La Démocratie à l’épreuve des pluralismes,” Revue française de science politique, 46 (2), 1996, p. 265. 86. See Friedrich August Hayek, Individualism and Economic Order, London, Routledge, 1949, p. 8. 87. See generally Michael Oakeshott, Rationalism in Politics, New York, Basic Books, 1962. 88. Dworkin, A Matter of Principle, p. 302. 89. As I shall attempt to demonstrate below in a more detailed way than Dworkin himself does: see supra, pp. 70–81. 90. For a concurring argument, see also Amy Gutmann, “Responding to Racial Injustice,” in Appiah and Gutmann, Color-Conscious, pp. 106–183. For other critiques of the principle of color blindness, see Jed Rubenfeld, “The Anti-Antidiscrimination Agenda,” Yale Law Journal, 111 (5), 2002, pp. 1167–1173; Kimberlé Crenshaw et al. ed., Critical Race Theory: The Key Writings that Formed the Movement, New York, The New Press, 1995. 91. Naturally, this second judgment should be constantly updated in view of the progress that the policy might achieve in that respect: Dworkin’s argument cannot justify maintaining affirmative action for an indefinite period of time. 92. I shall not seek to demonstrate the uniqueness of the injustice done to blacks (which would require a systematic comparison of the extent of the legal discrimination formerly suffered by them and by members of other minorities), since a survey of the historical and sociological literature suggests the existence of a consensus on the fact that “the experience of Negroes in America has been different in kind, not just in degree, from that of other ethnic groups” (Regents of the University of California v. Bakke, p. 400 (separate opinion of Justice Marshall)). Even sociologist Nathan Glazer, who in the past had famously argued to the contrary by minimizing the extent of the gap between the predicament of blacks (at least those living in the northern states) and that of recent immigrants and included both of them within the capacious “ethnicity” paradigm (see Glazer, Ethnic Dilemmas, pp. 70–93), dramatically revised his former judgment and now supports affirmative action provided its benefits are restricted to African Americans, in terms implicitly congruent with the consequentialist perspective outlined in this section (see Nathan Glazer, We Are All Multiculturalists Now, Cambridge (Mass.), Harvard University Press, 1997, pp. 147–152; “The Hard Questions,” The New Republic, October 7, 1996, p. 29; “The End of Meritocracy,” The New Republic, September 27, 1999, p. 28). Whether one considers slavery and its aftermath (Ira Berlin, Generations of Captivity: A History of African-American Slaves, Cambridge (Mass.), Harvard University Press, 2003; Orlando Patterson, Slavery and Social Death, Cambridge (Mass.), Harvard University Press, 1982; Herbert Gutman, The Black Family in Slavery and Freedom, 1750–1925, New York, Pantheon, 1976), the widespread exclusion of blacks from trade unions that hindered their economic advancement

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93.

94.

95. 96.

97. 98.

Notes

to such an extent that the very possibility of progress may have seemed doubtful (Herbert Hill, “Black Labor and Affirmative Action: An Historical Perspective,” in Stephen Shulman and William Darity, Jr., eds., The Question of Discrimination, Middletown, Wesleyan University Press, 1989, pp. 190–267; Bruce Nelson, Divided We Stand: American Workers and the Struggle for Black Equality, Princeton, Princeton University Press, 2001), the degree of school and residential segregation (Douglas Massey and Nancy Denton, American Apartheid: Segregation and the Making of the Underclass, Cambridge (Mass.), Harvard University Press, 1993; Christopher Bonestia, Knocking on the Door: The Federal Government’s Attempt to Desegregate the Suburbs, Princeton, Princeton University Press, 2006; Rajiv Sethi and Rohini Somanathan, “Inequality and Segregation,” Journal of Political Economy, 112 (6), 2004, pp. 1296–1321; Michael O. Emerson, George Yancey, and Karen Chai, “Does Race Matter in Residential Segregation? Explaining the Preferences of White Americans,” American Sociological Review, 66, December 2001, pp. 922–935), or the rhythm of the “structural assimilation” process (see Milton Gordon, Assimilation in American Life, New York, Oxford University Press, 1964, pp. 70–71, 110–111) observable through a study of the rates of exogamy over time (see supra, p. 178, note 12; Reynolds Farley, “Racial Issues: Recent Trends in Residential Patterns and Intermarriages,” in Neil Smelser and Jeffrey Alexander, eds., Diversity and its Discontents, Princeton, Princeton University Press, 1999, pp. 104–126), the evidence suggests that the egalitarian dynamic that enabled successive waves of European immigrants to assimilate into the mainstream of American society required the institutionalization of a symbol of absolute difference made up by one or several allegedly inassimilable groups, with blacks, and, to a certain extent, Asians (see Charles McClain, In Search of Equality: The Chinese Struggle against Discrimination in NineteenthCentury America, Berkeley, University of California Press, 1994) being confined to the status of a negative reference point. In addition, in the approach outlined under this section, affirmative action can only be justified by the enduring presence today of a specific disadvantage affecting its beneficiaries and deemed intolerable as such; the extent of the past injustice is relevant only insofar as it has an explanatory value enabling us to grasp the social meaning of the current underrepresentation of blacks among holders of the most valuable social positions—an underrepresentation that the policy is called upon to remedy. The moral requirement underlying it does not immediately derive from a historical assessment of the relative scope of the past injustice under consideration. Bastien François, “Le Conseil Constitutionnel et la Cinquième République. Réflexions sur l’émergence du contrôle de constitutionnalité en France,” Revue française de science politique, 47 (3–4), 1997, p. 391. Racism can be defined as a doctrine made up by the conjunction of the following statements: “One, there is a correlation between genetic heritage on the one hand and intellectual aptitudes and moral inclinations on the other. Two, this heritage, on which these aptitudes and inclinations depend, is shared by all members of certain human groups. Three, these groups, called “races,” can be evaluated as a function of the quality of their genetic heritage. Four, these differences authorize the so-called superior races to command and exploit the others, and eventually destroy them.” (Claude Lévi-Strauss and Didier Éribon, Conversations with Claude Lévi-Strauss, Chicago, University of Chicago Press, 1991, p. 150). Peter Berger and Thomas Luckmann, The Social Construction of Reality, p. 35. On the polysemy of race, see generally Ron Mallon, “‘Race’: Normative, Not Metaphysical or Semantic,” Ethics, 116 (3), 2006, pp. 525–551; Joshua Glasgow, “A Third Way in the Race Debate,” Journal of Political Philosophy, 14 (2), 2006, pp. 163–185; Lawrence Blum, I’m not a Racist But . . .: The Moral Quandary of Race, Ithaca, Cornell University Press, 2002. See generally Tommie Shelby, We Who Are Dark: The Philosophical Foundations of Black Solidarity, Cambridge (Mass.), Harvard University Press, 2005. Dinesh D’Souza, The End of Racism: Principles for a Multi-Racial Society, New York, The Free Press, 1995, p. 540.

Notes

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99. This disadvantage must also be analytically distinguished from the broader injustice inherent in the workings of the meritocratic system, in which the inequality of initial natural and social endowments plays a key role in determining who will get to occupy what occupation, while occupations have market-based, highly unequal rewards attached to them. As a matter of fact, it is worth emphasizing that whites themselves do seem to be aware of the existence of that specific, race-based disadvantage. So much is suggested by the sobering experiment conducted by sociologist Andrew Hacker among white high school students in Queens, in which he asked them to set the amount of money that they would have to receive for them to agree to be changed into a black person. On average, the interviewees demanded at least one million dollars per year; see Andrew Hacker, Two Nations: Black and White, Hostile, Separate, Unequal, New York, Scribner’s, 1992, pp. 35–36. 100. See Glenn Loury, One by One from the Inside Out: Essays and Reviews on Race and Responsibility in America, New York, The Free Press, 1995, pp. 101–106. 101. On the concept of “social capital,” see Robert Putnam, Bowling Alone: The Collapse and Revival of American Community, New York, Simon and Schuster, 2000; Stephen Baron, John Field, and Tom Schuller, Social Capital: Critical Perspectives, Oxford, Oxford University Press, 2001; Nan Lin, Social Capital: A Theory of Social Structure and Action, Cambridge, Cambridge University Press, 2002. On the importance of social capital in getting a job in the United States, see Ted Mouw, “Social Capital and Finding a Job: Do Contacts Matter?” American Sociological Review, 68 (6), 2003, pp. 868–898; Trond Petersen, Ishak Saporta, and Marc David Seidel, “Offering a Job: Meritocracy and Social Networks,” American Journal of Sociology, 106 (3), 1998, pp. 763–816. 102. For an explanatory account, see Thomas Schelling, “Dynamic Models of Segregation,” in Strategies of Commitment and Other Essays, Cambridge (Mass.), Harvard University Press, 2006, pp. 249–312. 103. See Roberto M. Fernandez and Isabel Fernandez-Mateo, “Network, Race, and Hiring,” American Sociological Review, 71 (1), 2006, pp. 42–71; Deirdre Royster, Race and the Invisible Hand: How White Networks Exclude Black Men from Blue-Collar Jobs, Berkeley, University of California Press, 2003. 104. “To induce the whites to abandon the opinion they have conceived of the moral and intellectual inferiority of their former slaves, the negroes must change ; but as long as this opinion persists, to change is impossible” (Tocqueville, Democracy in America, vol. 1, p. 426, fn.1). 105. Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy, New York, Harper & Row, 1944. 106. Gunnar Myrdal, An American Dilemma, vol. 1, pp. 76, 75. 107. Ibid., pp. 75–76. For a broader analysis of such feedback effects, see Robert Jervis, System Effects: Complexity in Political and Social Life, Princeton, Princeton University Press, 1997, pp. 146–155. 108. Myrdal, An American Dilemma, vol. 1, p. 77. 109. For a complementary overview, see also Michael B. Katz, Mark J. Stern, and Jamie J. Fader, “The New African American Inequality,” Journal of American History, 92 (1), 2005, pp. 75–108. 110. American Council on Education, Minorities in Higher Education: Twenty-First Annual Status Report (2003–2004), Washington, DC, 2005; see also Pamela R. Bennett and Yu Xie, “Revisiting Racial Differences in College Attendance: The Role of Historically Black Colleges and Universities,” American Sociological Review, 68, August 2003, pp. 567–580. 111. See Woodrow Wilson National Fellowship Foundation, Diversity and the Ph.D., Princeton, May 2005, http://www.woodrow.org/newsroom/News_Releases_/WW_Diversity_PhD_.pdf (accessed on November 23, 2006). 112. See Carmen DeNavas-Walt, Bernadette D. Proctor, and Cheryl Hill Lee, U.S. Census Bureau, Current Population Reports, P60–231, Income, Poverty, and Health Insurance Coverage in the United States: 2005, U.S. Government Printing Office, Washington, DC, 2006, p. 5, at

188

113.

114. 115.

116.

117.

118.

119.

120. 121. 122.

123.

124.

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http://www.census.gov/prod/2006pubs/p60–231.pdf (accessed on March 22, 2007). This gap is mostly due to the large proportion of (often lower income) single-parent families within the black population (48 percent in 2000). See generally Thomas M. Shapiro, The Hidden Cost of Being African American: How Wealth Perpetuates Inequality, Oxford, Oxford University Press, 2004; Melvin Oliver and Thomas M. Shapiro, Black Wealth/White Wealth: A New Perspective on Racial Inequality, New York, Routledge, 1995; Dalton Conley, Being Black, Living in the Red: Race, Wealth, and Social Policy, Berkeley, University of California Press, 1999. The Fair Housing Act, which bans discrimination based on race in housing sales and rental, was passed only in 1968. DeNavas-Walt, Proctor, and Lee, Income, Poverty, and Health Insurance Coverage in the United States: 2005, p. 13. See United States Bureau of the Census, Statistical Abstract of the United States, 2006, p. 409, table 610. That discrepancy is significantly smaller than what it would be if blacks did not also have greater rates of departure from the labor market: see Pedro Carneiro, James Heckman, and Dimitriy Masterov, “Labor Market Discrimination and Racial Differences in Premarket Factors,” Journal of Law and Economics, 48 (1), 2005, pp. 1–40. See Elisabeth Arias, “United States Life Tables,” National Vital Statistics Reports, 54 (14), 19 April 2006, at http://www.cdc.gov/nchs/data/nvsr/nvsr54/nvsr54_14.pdf (accessed on March 22, 2007). See http://www.ojp.usdoj.gov/bjs/homicide/race.htm (accessed on March 22, 2007); see also Julia A. Phillips, “White, Black, and Latino Homicide Rates: Why the Difference?” Social Problems, 49 (3), 2002, pp. 349–373. See http://www.hrw.org/reports/2000/usa/Rcedrg00–01.htm#P154_25524 (accessed on March 22, 2007). See also Loïc Wacquant, Deadly Symbiosis: Race and the Rise of the Penal State, Cambridge, Polity, forthcoming. See Thomas Pettigrew and Joanne Martin, “Shaping the Organizational Context for Black American Inclusion,” Journal of Social Issues, 43 (1), 1987, p. 45. Also, see generally Philip N. Cohen and Mark L. Huffman, “Black Underrepresentation in Management across U.S. Labor Markets,” Annals of the American Academy of Political and Social Science, 609 (1), 2007, pp. 181–199. See Dewey Clayton, African Americans and the Politics of Congressional Redistricting, New York, Garland, 2000, p. 12. See Jennifer Hochschild, Facing Up to the American Dream: Race, Class, and the Soul of the Nation, Princeton, Princeton University Press, 1995, p. 96. See “The AIDS ‘Plot’ Against Blacks,” New York Times, May 12, 1992; Stephen Carter, Reflections of an Affirmative Action Baby, New York, Basic Books, 1991, pp. 215, 218. In both cases, the percentages mentioned do not overlap; they correspond to different segments of the sample. Of course, a case can be made that these two statements are not equally implausible. See Hochschild, Facing Up to the American Dream, pp. 80–140. That study confirms the validity of the axiom according to which “greater upward mobility correlates with a lower level of overall satisfaction.” (Raymond Boudon, Effets pervers et ordre social, p. 135). On the class and neighborhood determinants of perceptions of discrimination and identification with racial group interests among blacks, see generally Michael Dawson, Behind the Mule: Race and Class in African American Politics, Princeton, Princeton University Press, 1994; Claudine Gay, “Putting Race in Context: Identifying the Environmental Determinants of Black Racial Attitudes,” American Political Science Review, 98 (4), 2004, pp. 547–562. See Devah Pager, “Measuring Discrimination,” paper presented at the conference “Equality of Opportunity in Education and Employment: French and American Perspectives,” Institute of French Studies, New York University, November 13–14, 2006 (on file with author). Of course, even if that impression turns out to be unfounded, it can still produce effects that it would be unwise to ignore. Some—otherwise interesting— studies simply overlook that analytical distinction between perceiving and experiencing discrimination, however: see Dennis

Notes 125.

126. 127.

128.

129. 130.

131. 132. 133. 134.

135.

189

Chong and Dukhong Kim, “The Experiences and Effects of Economic Status among Racial and Ethnic Minorities,” American Political Science Review, 100 (3), 2006, pp. 337, 340–341, 344. See Marianne Bertrand and Sendhil Mullainathan, “Are Emily and Greg More Employable Than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination,” American Economic Review, 94 (4), 2004, pp. 991–1013; Marc Bendick, Jr., Discrimination against Racial/Ethnic Minorities in Access to Employment in the United States: Empirical Results from Situation Testing, Geneva, International Labor Office, 1996; Margery Austin Turner, Michael Fix, and Raymond Struyk, Opportunities Denied, Opportunities Diminished: Racial Discrimination in Hiring, Washington, DC, Urban Institute, 1991. See Jomills H. Braddock and James McPartland, “Social Science Evidence and Affirmative Action Policies,” Journal of Social Issues, 43 (1), 1987, pp. 136–137. See Stephen L. Ross and Margery Austin Turner, “Housing Discrimination in Metropolitan America: Explaining Changes between 1989 and 2000,” Social Problems, 52 (2), 2005, pp. 152–180; Sidney Mara, Unfair Housing: How National Policy Shapes Community Action, Lawrence, University of Kansas Press, 2003; Scott South and Kyle Crowder, “Housing Discrimination and Residential Mobility: Impact for Blacks and Whites,” Population Research and Policy Review, 17 (4), 1998, pp. 369–387; Stephen Haydon, “A Measure of Our Progress: Testing for Race Discrimination in Public Accommodations,” UCLA Law Review, 44 (7), 1997, pp. 1207–1251; Gregory Squires, “Demobilization of the Individualistic Bias: Housing Market Discrimination as a Contributor to Labor Market and Economic Inequality,” Annals of the American Academy of Political and Social Science, 609 (1), 2007, pp. 200–214; Kevin Lang, Poverty and Discrimination, Princeton, Princeton University Press, 2007, pp. 335–344. See Guy Stuart, Discriminating Risk: The US Mortgage Lending Industry in the Twentieth Century, Ithaca, Cornell University Press, 2003, pp. 156–157; 176–177; Richard Williams, Reynold Nesiba, and Eileen Diaz McConnell, “The Changing Face of Inequality in Home Mortgage Lending,” Social Problems, 52 (2), 2005, pp. 181–208; Stephen L. Ross and John Yinger, The Color of Credit: Mortgage Discrimination, Research Methodology, and Fair-Lending Enforcement, Cambridge (Mass.), MIT Press, 2002; Margery Austin Turner and Felicity Skidmore (eds.), Mortgage Lending Discrimination: A Review of Existing Evidence, Washington, DC, The Urban Institute, 1999; Helen Ladd, “Evidence on Discrimination in Mortgage Lending,” Journal of Economic Perspectives, 12 (2), 1998, pp. 41–62. See Joe Feagin, “The Continuing Significance of Race: Anti-Black Discrimination in Public Places,” American Sociological Review, 56, February 1991, pp. 101–116. See Stephen Demuth and Darrell Steffensmeier, “The Impact of Gender and Race-Ethnicity in the Pretrial Release Process,” Social Problems, 51 (2), 2004, pp. 222–242; Ian Ayres and Joel Waldfogel, “A Market Test for Race Discrimination in Bail Setting,” Stanford Law Review, 46, May 1994, pp. 987–1047. See Devah Pager, “The Mark of a Criminal Record,” American Journal of Sociology, 108 (5), 2003, pp. 957–960. See Ian Ayres, Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination, Chicago, University of Chicago Press, 2001, pp. 165–232. See Ian Ayres, Fredrick Vars, and Nasser Zakariya, “To Insure Prejudice: Racial Disparities in Taxicab Tipping,” Yale Law Journal, 114 (7), 2005, pp. 1613–1674. See Ian Ayres, “Fair Driving: Gender and Race Discrimination in Retail Car Negotiations,” Harvard Law Review, 104 (4), 1991, pp. 817–872; John A. List, “The Nature and Extent of Discrimination in the Marketplace: Evidence from the Field,” Quarterly Journal of Economics, 119 (1), 2004, pp. 49–89. For a critique of the audit method, however, see James Heckman, “Detecting Discrimination,” Journal of Economic Perspectives, 12 (2), 1998, pp. 101–116; For a qualified defense by one of its most creative proponents, see Devah Pager, “The Use of Field Experiments for Studies of Employment Discrimination: Contributions, Critiques, and Directions for the Future,” Annals of the American Academy of Political and Social Science, 609 (1), 2007, pp. 104–133.

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136. See generally Randall Kennedy, Race, Crime, and the Law, New York, Pantheon, 1997; David Cole, No Equal Justice: Race and Class in the American Criminal Justice System, New York, New Press, 1999. 137. See McCleskey v. Kemp, 481 U.S. 279 (1987), p. 287. The study involved is the one by David Baldus, George Woodworth, and Charles Bulaski, published three years later under the title Equal Justice and the Death Penalty: A Legal and Empirical Analysis (Boston, Northeastern University Press, 1990). 138. That is, assuming the death penalty does act as a deterrent, an assumption which none of the parties was apparently willing to challenge; for more details, see Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles inside the Supreme Court, New York, Times Books, 1998, pp. 166–217. 139. See McCleskey v. Kemp, p. 292. In Washington v. Davis (426 U.S. 229 (1976)), the Court held that proof of discriminatory intent must be provided for some “state action” to be struck down as a violation of the Equal Protection Clause. 140. McCleskey v. Kemp, pp. 314–315 (Justice Powell’s majority opinion). 141. On discrimination in the criminal justice system, see also Jon Hurwitz and Mark Peffley, “Explaining the Great Racial Divide: Perceptions of Fairness in the US Criminal Justice System,” Journal of Politics, 67 (3), 2005, pp. 762–783; Nancy Scherer, “Blacks on the Bench,” Political Science Quarterly, 119 (4), 2004–2005, pp. 655–675. 142. See Sherrie Kossoudji, “Pride and Prejudice: Culture’s Role in Markets,” in Shulman and Darity, Jr., eds., The Question of Discrimination, pp. 293–314. 143. To which one must add the pressure exerted by the National Association of Black Social Workers, whose representatives unabashedly described cross-racial adoptions as a kind of cultural “genocide”; see “Position Paper from the National Association of Black Social Workers (April 1972),” reprinted in Rita J. Simon and Howard Alstein, Transracial Adoption, New York, Wiley, 1977, pp. 50–52. 144. For further information on transracial adoption, see Hawley Fogg-Davis, The Ethics of Transracial Adoption, Ithaca, Cornell University Press, 2002, Richard Banks, “The Color of Desire: Fulfilling Adoptive Parents’ Racial Preferences through Discriminatory State Action,” Yale Law Journal, 107 (4), 1998, pp. 875–964, Elisabeth Bartholet, “Where Do Black Children Belong? The Politics of Race Matching in Adoption,” University of Pennsylvania Law Review, 139 (5), 1991, pp. 1163–1256, and, for a broader overview, Randall Kennedy, Interracial Intimacies: Sex, Marriage, Identity, and Adoption, New York, Pantheon, 2003. 145. For a broader reconceptualization, see also Barbara Reskin, “Including Mechanisms in Our Models of Ascriptive Inequality,” American Sociological Review, 68 (1), 2003, pp. 1–21. 146. Pierre-André Taguieff, Les Fins de l’antiracisme, Paris, Michalon, 1995, p. 129 (italics in the original). 147. See Kinder and Sanders, Divided by Color, p. 40. 148. See Howard Schuman, Charlotte Steeh, and Lawrence Bobo, Racial Attitudes in America, Cambridge (Mass.), Harvard University Press, 1997 [1985], pp. 16–17; 74–75. 149. See generally Renee Romano, Race-Mixing: Black-White Marriage in Postwar America, Cambridge (Mass.), Harvard University Press, 2003; Werner Sollors, ed., Interracialism: BlackWhite Intermarriage in American History, Literature, and Law, New York, Oxford University Press, 2000. 150. Howard Schuman, Charlotte Steeh, and Lawrence Bobo, Racial Attitudes in America, pp. 74–75. Contrary to the “symbolic racism” thesis (see generally David Sears, Jim Sidanius, and Lawrence Bobo, eds., Racialized Politics: The Debate about Racism in America, Chicago, University of Chicago Press, 2000, pp. 16–19, 32–33, 76–117, 240–248), the very fact that 39 percent of whites are willing to voice their disapproval of interracial marriages suggests that the change in white attitudes regarding the other issues mentioned above is genuine and does not merely reflect a new, politically correct and conformity-driven tendency of whites to systematically conceal the general aversion toward blacks that they would continue to harbor. 151. Some data suggest that the individuals most directly at risk of being discriminated against are aware of that qualitative distinction. For example, according to the survey conducted by Bron

Notes

152. 153. 154.

155. 156.

157. 158. 159.

160. 161. 162. 163.

164. 165. 166. 167.

191

Raymond Taylor on the attitudes of employees in a forestry company toward affirmative action, the percentage of minority members agreeing with the statement that “without affirmative action, women and minorities would not get serious consideration for many department jobs” remained significantly higher than the proportion of those who felt that “prejudice is common in the department”; see Bron Raymond Taylor, Affirmative Action at Work: Law, Politics, and Ethics, Pittsburgh, University of Pittsburgh Press, 1991, pp. 156–157. See Gary Becker, The Economics of Discrimination, Chicago, University of Chicago Press, 1957, pp. 31–46. Ibid., pp. 65–81. Ibid., pp. 41–47. Similarly, one needs to consider the negative effects that the putative racism of other employees may well have on the new employee’s productivity, whenever that productivity is a function of the more or less harmonious cooperation between her and other members of the workforce. While the black individual involved is not responsible for such a lack of cooperation, that fact may well be deemed irrelevant by the employer. See George Akerlof, An Economist’s Book of Tales, Chicago, University of Chicago Press, 1984, pp. 31–43. To the best of my knowledge, the expression “statistical discrimination” was first used by economist Lester Thurow: see Lester Thurow, Generating Inequality, New York, Basic Books, 1975, pp. 170–181. For an illuminating analysis of the notion’s legal implications (or the lack of it) see Deborah Hellman, “Two Types of Discrimination: The Familiar and the Forgotten,” California Law Review, 86 (2), 1998, pp. 315–361. Edmund Phelps, “The Statistical Theory of Racism and Sexism,” American Economic Review, LXII (4), 1972, pp. 659–662. Kenneth Arrow, “Models of Job Discrimination,” in Anthony Pascal, ed., Racial Discrimination in Economic Life, Lexington, Lexington Books, 1972, pp. 83–102. Of course, one ought to keep in mind that the observable correlation between race and some other features that may prove detrimental to an employee’s productivity cannot be dissociated from the effects of past and present discrimination against blacks. Other potentially disqualifying correlations are produced by different factors: consider, for instance, the physiological correlation between a person’s sex and his or her life expectancy, a relevant element of information for insurance companies, which may have an incentive to discriminate on that basis. Bruce Ackerman, Social Justice in the Liberal State, New Haven, Yale University Press, 1980, p. 265. See Loury, One by One, p. 118. Robert Merton, “The Self-fulfilling Prophecy,” Antioch Review, 8, 1948, pp. 193–210. Of course, this does not mean that racial prejudice has diminished to the point that its impact can be considered negligible; the point is rather that affirmative action is not meant to deal with all the difficulties that blacks encounter, but only with those that are due to the correlation between race and class, such difficulties being acute enough to warrant the use of measures specifically designed to that end. Gerald Bronner, “Quelques bonnes raisons de mal anticiper le futur,” L’Année Sociologique, 46 (2), 1996, p. 339. United States Bureau of the Census, Statistical Abstract of the United States: 1999, p. 222 (table 358). See generally Kennedy, Race, Crime, and the Law, pp. 21–24. See Stanley Ridley, James Bayton, and Janice Hamilton Outtz, Taxi Service in the District of Columbia: Is it Influenced by Patrons’ Race and Destination?, Washington, DC, Washington Lawyers’ Committee for Civil Rights under the Law, on file with author. (In the majority of robbery cases, the culprits are men between 18 and 35 years; see United States Bureau of the Census, Statistical Abstract of the United States: 1994, p. 215 (table 340)). Taxi drivers are obviously not the only individuals likely to behave in that way. Consider, for instance, the following testimony by the black leader Jesse Jackson: “There is nothing more painful for me at this stage in my life than to walk down the street and hear footsteps and start to think about

192 168.

169.

170.

171. 172. 173.

174.

Notes

robbery and then look around and see it’s somebody white and feel relieved” (quoted in Kennedy, Race, Crime, and the Law, p. 15). See Michael Winerip, “Why Harlem Cops Don’t Discuss Race,” in Correspondents of the New York Times, How Race is Lived in America, New York, Times Books, 2001, pp. 231–249. For some philosophical, legal, and empirical perspectives, see Frederick Schauer, Profiles, Probabilities, and Stereotypes, Cambridge (Mass.), Harvard University Press, 2003; Matthias Risse and Richard Zeckhauser, “Racial Profiling,” Philosophy and Public Affairs, 32 (2), 2004, pp. 131–170; Annabelle Lever, “Why Racial Profiling is Hard to Justify,” Philosophy and Public Affairs, 33 (1), 2005, pp. 94–110; Bernard Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age, Chicago, University of Chicago Press, 2006; Samuel Gross and Katherine Barnes, “Road Work: Racial Profiling and Drug Interdiction on the Highway,” Michigan Law Review, 101 (3), 2002, pp. 653–754; John Knowles, Nicola Persico, and Petra Todd, “Racial Bias in Motor Vehicle Searches: Theory and Evidence,” Journal of Political Economy, 109 (1), 2001, pp. 203–229; Richard Banks, “Race-Based Suspect Selection and Color Blind Equal Protection Doctrine and Discourse,” UCLA Law Review, 48, June 2001, pp. 1075–1124. See Joleen Kirschenman and Kathryn Neckerman, “We’d Love to Hire Them but . . . The Meaning of Race for Employers,” in Christopher Jencks and Paul Peterson, eds., The Urban Underclass, Washington, DC, Brookings Institution, 1991, pp. 204–231; Philip Moss and Chris Tilly, Stories Employers Tell: Race, Skill, and Hiring in America, New York, Russell Sage Foundation, 2001. Quoted in William Julius Wilson, When Work Disappears: The World of the New Urban Poor, New York, Knopf, 1996, p. 114. Employers often use proxies other than race, too. For instance, within the category of “blacks,” many draw a distinction between U.S.-born and Caribbean-born workers and prefer to hire the latter on account of their being immigrants and therefore presumably hard-working and endowed with a culture of achievement (see Jennifer Lee, “Cultural Brokers: Race-Based Hiring in Inner-City Neighborhoods,” American Behavioral Scientist, 41 (7), 1998, pp. 932–936). Black Caribbean immigrants, whose average income is higher than that of U.S.-born blacks, thus have a comparative advantage that partly depends on their nonassimilation to the group of African Americans. On the ostensible use of their mother tongue by Spanish-speaking and French-speaking blacks as a protective device against discrimination, see Philip Kasinitz, Caribbean New York: Black Immigrants and the Politics of Race, Ithaca, Cornell University Press, 1992, p. 36. For a general overview, see Mary Waters, Black Identities: West Indian Immigrant Dreams and American Realities, Cambridge (Mass.), Harvard University Press; New York, Russell Sage Foundation, 1999; Reuel R. Rogers, Afro-Caribbean Immigrants and the Politics of Incorporation: Ethnicity, Exception, or Exit, New York, Cambridge University Press, 2006. See generally Mancur Olson, The Logic of Collective Action: Public Goals and the Theory of Groups, Cambridge (Mass.), Harvard University Press, 1965. James S. Coleman, Foundations of Social Theory, Cambridge (Mass.), Harvard University Press, 1976, p. 249. At a deeper level, a case can be made that the ultimate goal of affirmative action will be reached only when it will not occur to anyone to check on the percentage of black students or employees anymore. If the reference to eye color—the prototypical example of a physical characteristic as nonsalient as race should eventually become, according to the color-blind ideal—is such a familiar feature of the affirmative action debate, it is actually not so much because we know for sure that there is no correlation whatsoever between that socially unimportant trait and the position held by individuals in the economic and occupational hierarchy as because no one would even think of undertaking an empirical investigation designed to find out whether there is one. Thus, one of the many paradoxes of affirmative action lies in its attempt to organize the disappearance of its own conditions of possibility. See Marylin Brewer and Norman Miller, “Contact and Cooperation: When Do They Work?” in Phyllis Katz and Dalmas Taylor, eds., Eliminating Racism, New York, Plenum,

Notes 175. 176.

177. 178. 179. 180. 181. 182.

183. 184.

185.

186.

193

1988, p. 319; Rupert Nascoste, “Affirmative Action and Social Interaction,” Basic and Applied Social Psychology, 15 (1–2), 1994, pp. 225–242. Michel Dobry, Sociologie des crises politiques, Paris, Presses de la FNSP, 1986, p. 160 (italics in the text). In other words, while groups may be “derivatively important,” individuals remain “the loci of ultimate moral concern” (Larry Alexander, “Equal Protection and the Irrelevance of ‘Groups,’ ” Issues in Legal Scholarship, May 2003, p. 11, at http://www.bepress.com/ ils/iss2/art1/ (accessed on November 23, 2006). At the same time, the “value-individualism” embraced here “does not imply ontological individualism, that is, the view that groups are reducible to their members . . . . [It] is not a thesis about the ontology of groups, but about the ground of value” (Michael Hartney, “Some Confusions concerning Collective Rights,” in Will Kymlicka, ed., The Rights of Minority Cultures, Oxford, Oxford University Press, 1995, p. 208). Beauharnais v. Illinois, 343 U.S. 250 (1952), p. 263 (Justice Frankfurter’s majority opinion; emphasis added). Alexander Aleinikoff, “A Case for Race-Consciousness,” Columbia Law Review, 91 (5), 1991, p. 1066. Jeffrey Prager, “American Racial Ideology as Collective Representation,” Ethnic and Racial Studies, 5 (1), 1982, p. 110. Owen Fiss, “Groups and the Equal Protection Clause,” Philosophy and Public Affairs, 5 (2), 1976, p. 148. See Mancur Olson, The Logic of Collective Action, pp. 14–16, 36–43, 98–102. In this respect, see also Elizabeth S. Anderson, “Integration, Affirmative Action, and Strict Scrutiny,” New York University Law Review, 77, November 2002, pp. 1195–1271; “Racial Integration as a Compelling Interest,” Constitutional Commentary, 21, Spring 2004, pp. 101–127. Anne Phillips, The Politics of Presence, Oxford, Clarendon Press, 1995, p. 46. There are countless examples of this kind of argument in the affirmative action debate; see, for example, George Sher, Desert, Princeton, Princeton University Press, 1987, p. 256; Glazer, Ethnic Dilemmas, pp. 227–229; Richard Posner, The Economics of Justice, Cambridge (Mass.), Harvard University Press, 1981, p. 373; see also Hughes v. Superior Court, 339 U.S. 460, 464 (1949) (likening the pressure brought upon a Californian employer to increase the proportion of African Americans in his workforce to the structurally unlimited list of further demands that may then be voiced on behalf of “Hungarians in Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio”). See Bernard Williams, “Which Slopes Are Slippery?” in Bernard Williams, Making Sense of Humanity: And Other Philosophical Papers, p. 213. See also Wibren Van der Burg, “The Slippery Slope Argument,” Ethics, 102 (1), 1991, pp. 42–65; Eric Lode, “Slippery Slope Arguments and Legal Reasoning,” California Law Review, 87, December 1999, pp. 1469–1544; Eugene Volokh, “The Mechanisms of the Slippery-Slope,” Harvard Law Review, 116, February 2003, pp. 1026–1134. See Young, Justice and the Politics of Difference, pp. 43–46, from which the following development derives.

Part 2 Interpreting Legitimization Strategies for Affirmative Action 1. By “negative side effects” I mean those unintended effects of a given action that turn out to be the exact contrary of what the actor intended; see Hirschman, The Rhetoric of Reaction, p. 72.

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Notes

2. Desmond King and Jeremy Waldron, “Citizenship, Social Citizenship, and the Defence of Welfare Provision,” British Journal of Political Science, 18 (4), 1988, p. 422. 3. See Brewer and Miller, “Contact and Cooperation,” pp. 320, 324; Myron Rothbart and Oliver P. John, “Social Categorization and Behavioral Episodes: A Cognitive Analysis of the Effects of Intergroup Contact,” Journal of Social Issues, 41 (3), 1985, pp. 95–96; Thomas Srull and Robert Wyer, “Category Accessibility and Social Perception: Some Implications for the Study of Person Memory and Interpersonal Judgements,” Journal of Personality and Social Psychology, 38, June 1980, pp. 841–856. 4. Jon Elster, Sour Grapes: Studies in the Subversion of Rationality, Cambridge, Cambridge University Press ; Paris, Éditions de la Maison des sciences de l’Homme, 1983, p. 58. 5. Of course, one may fail in trying to do so. Thus, legal scholar Cass Sunstein has made the plausible though empirically unsubstantiated suggestion that part of the current hostility toward affirmative action may well stem from a widespread perception and resentment of that policy’s lack of transparency; see Cass Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court, Cambridge (Mass.), Harvard University Press, 1999, p. 130. 6. While many scholars actually noticed the element of dissimulation involved in the legal and political discourse on affirmative action, most of them did so only in passing, and accounting for its existence was not their main concern: see Keith Bybee, “The Political Significance of Legal Ambiguity: The Case of Affirmative Action,” Law and Society Review, 34 (2), 2000, p. 267; Guido Calabresi and Philip Bobbitt, Tragic Choices: The Conflict Society Confronts in the Allocation of Tragically Scarce Resources, New York, Norton, 1978, p. 222 ; Roemer, Equality of Opportunity, pp. 111–112; Calvès, L’Affirmative action, pp. 136–137; Nathan Glazer, “The End of Meritocracy,” p. 28; Harvey Mansfield, Jr., “The Underhandedness of Affirmative Action,” in Nieli, ed., Racial Preference, p. 130 ; Paul Mishkin, “The Uses of Ambivalence: Reflections on the Supreme Court and the Constitutionality of Affirmative Action,” University of Pennsylvania Law Review, 131, March 1983, p. 928; Abigail Thernstrom and Stephan Thernstrom, “Secrecy and Dishonesty: The Supreme Court, Racial Preferences, and Higher Education,” Constitutional Commentary, 21 (1), 2004, pp. 251–274; Ronald Dworkin, “The Court and the University,” New York Review of Books, May 15, 2003, p. 10. For a broader analysis of other, less specific kinds of dissimulation in the Supreme Court case law, see Rogers M. Smith, “The Inherent Deceptiveness of Constitutional Discourse: A Diagnosis and Prescription,” in Ian Shapiro and Robert Adams, eds., NOMOS. Integrity and Conscience, New York, New York University Press, 1998, pp. 218–254. For a still broader philosophical treatment, see Larry Alexander and Emily Sherwin, “Deception in Morality and Law,” Law and Philosophy, 22 (5), 2003, pp. 393–450. 7. See generally Erving Goffman, Frame Analysis: An Essay on the Organization of Experience, New York, Harper, 1974. 8. Tocqueville, Democracy in America, Harmondsworth, Penguin, trans. Gerald Bevan, 2003 [1835–1840], p. 505. 9. Berger and Luckmann, The Social Construction of Reality, p. 86.

Chapter Four The Problems with the Deracialization Argument 1. See generally Jürgen Habermas, Moral Consciousness and Communicative Action, Cambridge (Mass.), MIT Press, 1990. 2. See Skrentny, The Ironies of Affirmative Action, pp. 41–45.

Notes

195

3. See generally Ruth O’Brien, Crippled Justice: The History of Modern Disability Policy in the Workplace, Chicago, University of Chicago Press, 2001; Linda Hamilton Krieger, ed., Backlash against the ADA: Reinterpreting Disability Rights, Ann Harbor, University of Michigan Press, 2003. Broadly speaking, the Americans with Disabilities Act amounts to extending the reach of the Supreme Court’s Griggs decision—construing Title VII of the 1964 Civil Rights Act as prohibiting disparate impact discrimination, whether intentional or not (see supra, pp. 118–124)—to discrimination based on handicap. To consider a most basic example, making it impossible for people to access their workplace other than by a staircase, because this has a (particularly obvious) disparate impact on those who are confined to a wheelchair, is now held to be “discriminatory” under statutory law; see generally Christine Jolls, “Antidiscrimination and Accommodation,” Harvard Law Review, 115, December 2001, pp. 642–699; Michael Ashkley Stein, “Same Struggle, Different Difference: ADA Accommodations and Antidiscrimination,” University of Pennsylvania Law Review, 153 (2), 2004, pp. 579–673. 4. Mary Waters, Ethnic Options: Choosing Identities in America, Berkeley, University of California Press, 1990, pp. 157–158. 5. Ibid., pp. 155–164. In this connection, see also John David Skrentny, “Policy-Elite Perceptions and Social Movement Success: Understanding Variations in Group Inclusion in Affirmative Action,” American Journal of Sociology, 111 (6), 2006, especially pp. 1782–1787. 6. Regents of the University of California v. Bakke, p. 297 (Justice Powell’s opinion). 7. See also supra, pp. 8–10. 8. This example was initially offered by Paul Brest; see Paul Brest, Processes of Constitutional Decision-Making, Boston, Little, Brown, 1975, p. 489. 9. See supra, p. 38. 10. Goffman, Stigma, p. 138. 11. Dworkin, A Matter of Principle, p. 295 (emphasis added). 12. See Andrew Koppelman, Antidiscrimination Law and Social Equality, New Haven, Yale University Press, 1996, pp. 24–27. 13. Ibid., p. 8. 14. Koppelman justifies this project of cultural transformation by emphasizing the permanence of racism, the effects of which are all the more unaffected by antidiscrimination legislation that members of the dominant group are not necessarily aware of it (pp. 45–46). Yet, while unconscious racism and discrimination are surely at play in many cases (see generally Charles Lawrence III, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review, 39, January 1987, pp. 317–388; Samuel Bagenstos, “The Structural Turn and the Limits of Antidiscrimination Law,” California Law Review, 94 (1), 2006, pp. 1–47, as well as the “Symposium on Behavioral Realism” published in the California Law Review (94 (4), 2006, pp. 945–1190); for a critique of the unconscious discrimination paradigm, see Gregory Mitchell and Philip E. Tetlock, “Antidiscrimination Law and the Perils of Mindreading,” Ohio State Law Journal, 67 (5), 2006, pp. 1023–1121), one should also pay attention to those “dogmatic belief[s]” discussed by Tocqueville, that are not usually subject to scrutiny and stand as the informational background against which individual actions are carried out. Indeed, “if man were forced to demonstrate to himself all the truths of which he makes daily use, his task would have no end. He would exhaust his strength in preparatory exercises, without advancing beyond them. As, from the shortness of his life, he has no time, nor, from the limits of his intelligence, the capacity, to accomplish this, he is reduced to take upon trust a number of facts and opinions . . .; nor is he led to proceed in this manner by choice, so much as he is constrained by the inflexible law of his condition” (Tocqueville, Democracy in America, vol. 2, pp. 8–9). These “dogmatic belief[s]” pertaining to racial identities, or a fraction of them, are precisely what affirmative action is meant to transform: as Tocqueville suggests, such beliefs “may change [their] object or [their] form” as a result of some recurring “experience,” which is actually the only way of “shaking the majority in an opinion once conceived” and of “uproot[ing] the prejudices of a democratic people” (pp. 8, 309).

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15. François Furet, “Préface,” in Alexis de Tocqueville, De la démocratie en Amérique, Paris, GarnierFlammarion, 1981 [1835–1840], vol. 1, p. 30. 16. Raymond Boudon, Effets pervers et ordre social, p. 134. 17. See Elster, Sour Grapes, pp. 109–140. 18. On the notion of “role model,” see Adeno Addis, “Role Models and the Politics of Recognition,” University of Pennsylvania Law Review, 144 (4), 1996, pp. 1377–1468. 19. See Bernadette Gray-Little and Adam R. Hafdahl, “Factors Influencing Racial Comparisons of Self-Esteem: A Quantitative Review,” Psychological Bulletin, 126 (1), 2000, pp. 26–54; Jennifer Crocker and Brenda Major, “Social Stigma and Self-Esteem: The Self-Protective Properties of Stigma,” Psychological Review, 96, 1989, pp. 608–630. 20. See Sniderman and Piazza, The Scar of Race, pp. 44–46. Some argue that it is paradoxically the disappearance of official discrimination against blacks that have made them more vulnerable to these rumors of inferiority, since they are now supposedly able to demonstrate their invalidity by dint of their own accomplishments; see Jeff Howard and Ray Hammond, “Rumors of Inferiority,” The New Republic, September 9, 1985, pp. 17–21; see also Brenda Major, Steven Spencer, Toni Schmader, Connie Wolfe, and Jennifer Crocker, “Coping with Negative Stereotypes about Intellectual Performance: The Role of Psychological Disengagement,” Personality and Social Psychological Bulletin, 24 (1), 1998, pp. 34–50. 21. In Wygant v. Jackson Board of Education, the Supreme Court eventually discarded the role model theory for another reason, namely that it led to endorsing a standard of ethnoracial proportionality bearing no relationship to a judicially identifiable injury for an unlimited period of time: see Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), p. 276. 22. See Samuel Huntington, American Politics: The Promise of Disharmony, Cambridge (Mass.), Harvard University Press, 1981, pp. 33–37. 23. Tocqueville, Democracy in America, vol. 2, p. 132. 24. Oakeshott, Rationalism, p. 187. 25. Tocqueville, Democracy in America, vol. 1, p. 445 (emphasis added). 26. Peter Berger and Thomas Luckmann, The Social Construction of Reality, p. 146. 27. Colette Guillaumin, “La Différence culturelle,” in Wieviorka, ed., Racisme et modernité, p. 149. 28. Sandel, Liberalism, p. 142; see also pp. 141–143. 29. Michael Sandel, “Picking Winners,” The New Republic, December 1, 1997, p. 16. 30. Jon Elster, Psychologie politique (Veyne, Zinoviev, Tocqueville), Paris, Éditions de Minuit, 1990, pp. 78–79. 31. It is important to draw a clear distinction between the two meanings of the term “color blindness,” since in the American political debate that notion often works as an “internal negation passing for an external one” (ibid., p. 92). 32. Ibid., p. 81. 33. Ibid. 34. Elster, Sour Grapes, p. 43. 35. Ibid.; Elster, Psychologie politique, p. 51 ; Jon Elster, “Is There (or Should There Be) a Right to Work?” in Amy Gutmann, ed., Democracy and the Welfare State, Princeton, Princeton University Press, 1988, p. 74. 36. Elster, Sour Grapes, p. 46. 37. Ibid., p. 45. 38. Elster, Psychologie politique, pp. 76, 92. 39. Elster, Sour Grapes, p. 43. 40. Ibid., p. 44 ; Elster, Psychologie politique, p. 50. 41. Elster, Sour Grapes, p. 60 ; Elster, Psychologie politique, p. 51. 42. Elster, Sour Grapes, p. 56. 43. Ibid., pp. 60, 84.

Notes Chapter Five

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The Negative Side Effects of Transparency

1. This point has been raised in several Supreme Court decisions: see Regents of the University of California v. Bakke, pp. 398 (opinion of Justice Powell), 360 (opinion of Justice Brennan); United Jewish Organizations v. Carey, 430 U.S. 144 (1977), pp. 173–174 (opinion of Justice Brennan); Fullilove v. Klutznick, 448 U. S. 448 (1980), p. 545 (opinion of Justice Stevens); City of Richmond v. Croson, 488 U.S. 469 (1989), p. 493 (opinion of Justice O’ Connor). 2. According to one of the most extensive studies available so far, eliminating affirmative action in top-tier universities would entail a 50 percent to 75 percent decrease in the numbers of black students (even though it would only increase the ex ante likelihood of admission for each white applicant by a small margin); see William Bowen and Derek Bok, The Shape of the River: LongTerm Consequences of Considering Race in College and University Admissions, Princeton, Princeton University Press, 1998, pp. 34–35, 39. 3. See generally Linda Hamilton Krieger, “The Content of Our Categories: A Cognitive Bias Approach on Discrimination and Equal Employment Opportunity,” Stanford Law Review 47, July 1995, pp. 1161–1248 (brilliantly reviewing a substantial portion of the relevant literature). 4. In some cases the subjects had been informed that their assignment to one “group” or another was purely random; in others the people involved were divided according to a minimal common denominator such as a stated preference for one item out of a set of paintings or photographs; see Henri Tajfel, Michael Billig, R.P. Bundy, and Claude Flament, “Social Categorization and Intergroup Behavior,” European Journal of Social Psychology, 1, 1971, pp. 165–166. 5. See Henri Tajfel, “Cognitive Aspects of Prejudice,” Journal of Social Issues, 25 (4), 1969, p. 81; Thomas Ostrom and Constantine Sedikides, “Out-Group Homogeneity Effects in Natural and Minimal Groups,” Psychological Bulletin, 112 (3), 1992, pp. 536–552. 6. Sabine Otten and Dirk Wentura, “About the Impact of Automaticity in the Minimal Group Paradigm: Evidence from Affective Priming Tasks,” European Journal of Social Psychology, 29 (8), 1999, pp. 1049–1071. 7. See Michael Billig and Henri Tajfel, “Social Categorization and Similarity in Intergroup Behavior,” European Journal of Social Psychology, 3 (1), 1973, pp. 37–48. 8. See John Howard and Myron Rothbart, “Social Categorization and Memory for In-Group and Out-Group Behavior,” Journal of Personality and Social Psychology, 38 (2), 1980, pp. 303–306; Charles Stangor and David McMillan, “Memory for Expectancy-Congruent and ExpectancyIncongruent Information: A Review of the Social and Social Developmental Literatures,” Psychological Bulletin, 111 (1), 1992, pp. 42–61. 9. See Hamilton Krieger, “The Content of Our Categories,” p. 1192. 10. Dobry, Sociologie des crises politiques, p. 198. 11. See Rothbart and John, “Social Categorization,” p. 96; Thomas Srull and Robert Wyer, “The Role of Category Accessibility in the Interpretation of Information about Persons: Some Determinants and Implications,” Journal of Personality and Social Psychology, 37 (10), 1979, pp. 1660–1672. 12. See Pettigrew and Martin, “Shaping the Organizational Context,” p. 58. 13. See for instance, Madeleine Heilman, Caryn J. Brock, and Peter Stathatos, “The Affirmative Action Stigma of Incompetence: Effects of Performance Information Ambiguity,” Academy of Management Journal, 40 (3), 1997, pp. 603–625; Luis Garcia, Nancy Erskine, Cathy Hawn, and Susan Casmey, “The Effects of Affirmative Action on Attributions about Minority Group Members,” Journal of Personality, 49 (4), 1981, pp. 427–437; Rupert Nascoste, “Sources of Stigma: Analyzing the Psychology of Affirmative Action,” Law and Policy, 12 (2), 1990, pp. 175–195; “Social Psychology and Affirmative Action: The Importance of Process in Policy Analysis,” Journal of Social Issues, 43 (1), 1987, pp. 127–132; Russell Summers, “The Influence of Affirmative Action on Perceptions of a Beneficiary’s Qualifications,” Journal of Applied Social Psychology, 21 (15), 1991, pp. 1265–1277; Linda Hamilton Krieger, “Civil Rights

198 14. 15.

16.

17. 18. 19. 20. 21. 22. 23. 24.

25.

Notes

Perestroika: Intergroup Relations after Affirmative Action,” California Law Review, 86 (6), 1998, pp. 1264–1270. In this respect, see the dissenting opinion by Justice Stevens in Fullilove v. Klutznick, p. 545. Gordon Allport, The Nature of Prejudice, Cambridge (Mass.), Addison-Wesley, 1954, p. 281 (emphasis added); on the reduction of prejudice through intergroup contact, see generally Thomas Pettigrew and Linda Tropp, “A Meta-Analytic Test of Intergroup Contact Theory,” Journal of Personality and Social Psychology, 90 (5), 2006, pp. 751–783. In this connection, see Lu-in Wang, “Race as Proxy: Situational Racism and Self-fulfilling Stereotypes,” DePaul Law Review, 53 (3), 2004, pp. 1013–1109. Two examples borrowed from the empirical literature on U.S. public opinion toward affirmative action confirm the existence of stigmatization effects induced by the policy’s visibility, of which blacks themselves are obviously aware. First, there is a significant increase in the support expressed by white men for affirmative action when it is stipulated that the programs benefit groups other than blacks (whether women or members of other ethnoracially defined minorities), a fact which seems to reflect the legitimacy-enhancing power of expanding the set of groups targeted by a redistributive policy (see Steeh and Krysan, “Affirmative Action and the Public,” pp. 137–138). At first sight, it may seem intuitively plausible to ascribe that discrepancy to some residual hostility specifically directed at blacks. Yet, that hypothesis is weakened by the fact that in a similar survey, the discrepancy remained regardless of the respondent’s race (see Kinder and Sanders, Divided by Color, pp. 183–184). In some cases blacks themselves are apparently willing to settle for a decrease in the quantity of material resources made available to them through affirmative action—an obvious consequence of extending the policy to members of other groups—in exchange for the symbolic gain of thus escaping the humiliation of being the only designated category to benefit from so controversial a policy. Such a choice arguably reflects their acknowledgment of the risk of increased stigmatization that this status would carry. Second, the fact that hostility toward affirmative action can itself trigger an increase in selfavowed prejudice toward blacks has been established by political scientists Paul Sniderman and Thomas Piazza. They observed that the mere mention by the interviewer of the existence of affirmative action played a key role in activating racist stereotypes, as indicated by the significant rise in the approval of various derogatory statements about blacks registered when the questions were immediately preceded by a sentence about the policy being an exception to the meritocratic rule (see Sniderman and Piazza, The Scar of Race, pp. 97–104). Emphasizing the existence of affirmative action could thus prove to be counterproductive with respect to its underlying goal of deracializing American society. See supra, p. 197, note 1. Regents of the University of California v. Bakke, p. 376. Scalia, “The Disease as Cure,” p. 219. Frederick Douglass, “What the Black Man Wants,” in Philip Foner, ed., The Life and Writings of Frederick Douglass, vol. 4, p. 159. See Shelby Steele, The Content of Our Character: A New Vision of Race in America, New York, St Martin’s Press, 1990, pp. 116, 90. See Glenn Loury, “Beyond Civil Rights,” in Nieli, ed., Racial Preference, p. 447. See Hirschman, The Rhetoric of Reaction, pp. 36, 38, 43, 76, 166. See Francine Tougas, Stéphane Joly, Anne M. Beaton, and Line Pierre, “Reactions of Beneficiaries to Preferential Treatment: A Reality Check,” Human Relations, 49 (4), 1996, pp. 453–464; Marlene Turner and Anthony Pratkanis, “Affirmative Action as Help: A Review of Recipient Reactions to Preferential Selection and Affirmative Action,” Basic and Applied Social Psychology, 15 (1–2), 1994, pp. 43–69. The opposite view is defended in Michael Yelnosky, “The Prevention Justification for Affirmative Action,” Ohio State Law Journal, 64 (5), 2003, pp. 1385–1425.

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26. See, for example, Richard Herrnstein and Charles Murray, The Bell Curve, New York, The Free Press, 1994, pp. 470–475. 27. See David L. Hamilton, Susan Sherman, and Catherine Ruvolo, “Stereotype-Based Expectancies: Effects on Information Processing and Social Behaviors,” Journal of Social Issues, 46 (2), 1990, pp. 35–60. 28. See Joshua Correll, Bernadette Park, Charles M. Judd, and Bernd Wittenbrink, “The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals,” Journal of Personality and Social Psychology, 83 (6), 2002, pp. 1314–1329; B. Keith Payne, “Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon,” Journal of Personality and Social Psychology, 81 (2), 2001, pp. 181–192; Andrew Sagar and Janet Ward Schofield, “Racial and Behavioral Cues in Black and White Children’s Perceptions of Ambiguously Aggressive Acts,” Journal of Personality and Social Psychology, 39, 1980, pp. 594–595. 29. See Thomas Pettigrew, “The Intergroup Contact Hypothesis Reconsidered,” in Miles Hewstone and Rupert Brown, eds., Contact and Conflict in Intergroup Encounters: Social Psychology and Society, New York, Blackwell, 1986, pp. 169–195. 30. Meaning that, all other things being equal, blacks are more often perceived as being extremely incompetent or extremely competent than their white coworkers. 31. See Pettigrew and Martin, “Shaping the Organizational Context,” pp. 56–57, 64, and, more generally, Thomas E. Ford, Charles Stangor, and Duan Changmin, “Influence of Social Category Accessibility and Category-Associated Trait Accessibility on Judgment of Individuals,” Social Cognition, 12 (2), 1994, pp. 149–168. 32. Quoted in Hochschild, Facing Up to the American Dream, pp. 127–128. 33. See Rothbart and John, “Social Categorization,” pp. 81, 83. 34. Since then, the university has decided not to disclose such data anymore, in order to protect the students’ right to “confidentiality”; see Robert Klitgaard, Choosing Elites, New York, Basic Books, 1985, p. 155. 35. See Linda Wightman, “The Threat to Diversity in Legal Education: An Empirical Analysis of the Consequences of Abandoning Race as a Factor in Law School Admission Decisions,” New York University Law Review, 72 (1), 1997, p. 30 (table 6). 36. See Lacorne, La Crise de l’identité américaine, pp. 307–309. 37. See supra, p. 170, note 15. 38. See Hopwood v. State of Texas, p. 936. 39. For other similar illustrations, see DeFunis v. Odegaard, 416 U.S. 312 (1974), p. 325; Jerome Karabel, Freshmen Admissions at Berkeley: A Policy for the 1990s and Beyond, Berkeley, University of California Press, 1989, p. 22. 40. See Richard Kahlenberg, The Remedy: Race, Class, and Affirmative Action, New York, New Republic Books/Basic Books, 1996, pp. 66–68, 242; Terrance Sandalow, “Minority Preferences Reconsidered,” Michigan Law Review, 97 (6), 1999, pp. 1895–1896. 41. See Klitgaard, Choosing Elites, pp. 174–175; Thomas Sowell, Preferential Policies: An International Perspective, New York, Morrow, 1990, p. 110. Other factors help account for the persistence of this race-based gap in qualifications within each university. Among them is the fact that even if some of the black students preferred to attend an institution where they could be admitted without the affirmative action bonus, financial considerations might discourage them from doing so. As far as private colleges are concerned, the institutions whose admissions criteria are the most difficult to meet are also the ones that are best endowed and therefore in a position to grant the largest amount of financial aid, upon which black students are more dependent than others. 42. See Thernstrom and Thernstrom, America in Black and White, pp. 391–397, 405–409. In the same vein, Eugene Volokh, a professor of law at UCLA who went on record opposing affirmative action, reports that some white students, while choosing optional courses, consider the

200

43.

44. 45. 46. 47.

48. 49.

50.

Notes

proportion of blacks and Hispanics present during the first class and choose the course in which that proportion is the highest. Their choice is based on the assumption that members of these two minorities, some of whom have been admitted thanks to affirmative action, will be less well-prepared, thereby automatically propelling whites to the top of the class and allowing them to get better grades, all other things being equal; see Eugene Volokh, “Diversity, Race as Proxy, and Religion as Proxy,” UCLA Law Review, 43 (6), 1996, p. 2067. Bowen and Bok, The Shape of the River. For additional evidence, see Mitchell Chang, Daria Witt, James Jones, and Kenji Hakuta, eds., Compelling Interest: Examining the Evidence on Racial Dynamics in Colleges and Universities, Stanford, Stanford University Press, 2003; William Bowen, Martin A. Kurzweil, and Eugene M. Tobin, Equity and Excellence in American Higher Education, Charlottesville, University of Virginia Press, 2005. See D’Souza, The End of Racism, pp. 322–326. See Steele, The Content of Our Character; Carter, Reflections. See Bowen and Bok, The Shape of the River, pp. 16–18, 37–38. Ibid., pp. 55–59. See also Sigal Alon and Marta Tienda, “Assessing the Mismatch Hypothesis: Differentials in College Graduation Rate by Institutional Selectivity,” Sociology of Education, 78 (4), 2005, pp. 294–315. Bowen and Bok, The Shape of the River, pp. 59–65, 114–115. Ibid., pp. 118–148. On the other hand, it is true that the grades of black students remain on average lower than those of white students, a fact for which affirmative action may be partly responsible (for conflicting views on this matter, see Richard Sander, “A Systematic Analysis of Affirmative Action in American Law Schools,” Stanford Law Review, 57 (2), 2004, pp. 367–483; Ian Ayres and Richard Brooks, “Does Affirmative Action Reduce the Number of Black Lawyers?” Stanford Law Review, 57 (6), 2005, pp. 1807–1854 ; David L. Chambers, Timothy T. Clydesdale, William C. Kidder, and Richard O. Lempert, “The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander’s Study,” Stanford Law Review, 57 (6), 2005, pp. 1855–1898). For an empirical study finding that minority students are deterred from pursuing Ph.Ds, and hence entering academic jobs, because affirmative action at the undergraduate level channels these students into more selective schools, where they get lower grades relative to their nonminority peers, see Stephen Cole and Elinor Barber, Increasing Faculty Diversity: The Occupational Choices of High-Achieving Minority Students, Cambridge (Mass.), Harvard University Press, 2003. Bowen and Bok, The Shape of the River, pp. 231–240; 266–268. This finding has been challenged, however: see Stanley Rothman, Seymour Martin Lipset, and Neil Levitte, “Does Enrollment Diversity Improve University Education?” International Journal of Public Opinion Research, 15 (1), 2003, pp. 8–26.

Chapter Six Evidence of Dissimulation Strategies 1. See supra, pp. 118–124. 2. See Herman Belz, Equality Transformed: A Quarter-Century of Affirmative Action, New Brunswick, Transaction, 1991, p. 282. 3. Quoted in Skrentny, The Ironies, of Affirmative Action, p. 135 (emphasis added). 4. Ibid. 5. The Philadelphia Plan was the first official “affirmative action” program. It was set up by the Department of Labor in December 1969 and initially applied only to the construction industry. The program stipulated that the federal government would condition the award of public contracts on the contractors’ “good-faith efforts” toward raising the proportion of underrepresented ethnoracial minorities in their workforce beyond a predefined threshold; see generally Terry H. Anderson, The Pursuit of Fairness: A History of Affirmative Action, New York, Oxford

Notes

6. 7.

8.

9. 10.

11. 12. 13. 14. 15.

16. 17. 18. 19. 20. 21.

201

University Press, 2004, pp. 118–125; Nicholas Pedriana and Robin Stryker, “Political Culture Wars 1960s Style: Equal Employment Opportunity-Affirmative Action Law and the Philadelphia Plan,” American Journal of Sociology, 103 (3), 1997, pp. 633–691. See Skrentny, The Ironies of Affirmative Action, p. 138. On the indeterminacy of what “compliance” to the affirmative action requirement enclosed in Executive Order 11246 and to Title VII of the 1964 Civil Rights Act meant, see also Lauren Edelman, “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law,” American Journal of Sociology, 97 (6), 1992, pp. 1536–1538. Skrentny, The Ironies of Affirmative Action, pp. 224–225. As summarized by George Schultz, one of the chief designers of the Philadelphia Plan: while “[a] quota is a system which keeps people out . . ., [w]hat we are seeking are objectives to get people in” (ibid., pp. 196–197); see also Dean Kotlowski, Nixon’s Civil Rights, Cambridge (Mass), Harvard University Press, 2001, pp. 105, 114. See supra, pp. 142–145. See Higher Education for American Democracy: A Report of the President’s Commission on Higher Education, Washington, DC, Government Printing Office, 1947, vol. I, p. 35; see also Anthony S. Chen, “ ‘The Hitlerian Rule of Quotas’: Racial Conservatism and the Politics of Fair Employment Legislation in New York State,” Journal of American History, 92 (4), 2006, at http:// www.historycooperative.org/journals/jah/92.4/chen.html (accessed on March 22, 2007). See Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy, New York, The Free Press, 1994. See Sniderman and Piazza, The Scar of Race, p. 130. In addition that what follows, see Roland Fryer and Glenn Loury, “Affirmative Action and Its Mythology,” Journal of Economic Perspectives, 19 (3), 2005, pp. 148–150. See Craemer v. Virginia Commonwealth University, 415 F. Supp. 673 (1976), p. 679. One of the few areas in which the “goals”/”quotas” distinction has some practical—as opposed to purely symbolic—significance is the army, where affirmative action for women and minorities does not entail preferential treatment. This in turn makes the risk that the beneficiaries of this “nonpreferential” affirmative action should suffer some additional stigma as a result of the policy arguably negligible. Also, since the primary raison d’être of the military is emphatically not to improve the life conditions of American blacks (who now make up about one-third of its personnel), its contribution to the racial integration of American society retains an incidental character, which is arguably an advantage (see Charles Moskos and John Butler, All That We Can Be: Black Leadership and Racial Integration the Army Way, New York, Basic Books, 1996, pp. 32, 53, 66–71, 119–120). Yet, any attempt to reproduce on a larger scale this “affirmative action model” is arguably bound to fail, for at least two reasons. First, the relatively harmonious nature of race relations in the military is partly a consequence of the exceptionally severe repression of racist and discriminatory behaviors within it, a repression made possible by a general degree of social control that does not exist and would not be considered legitimate in other spheres of contemporary liberal democracies. Second, the very possibility of promoting many blacks to higher positions without having to lower standards in any way depends on a particularly abundant supply of black applicants, which itself is arguably related to their belief that the army is one of the very few institutions that are genuinely open to them (ibid., pp. 9, 42, 69–70). U.S. Congress, Congressional Record, vol. 110, 1964, p. 7213. U.S. Congress, Civil Rights Act of 1964, Title VII, section 703 (h); 42 U.S. C. § 20002–2 (h) (1982). See Michael Selmi, “Was the Disparate Impact Theory a Mistake?” UCLA Law Review, 53 (3), 2006, pp. 757–763, and supra, pp. 121–122. Griggs v. Duke Power Co., p. 432. Ibid., pp. 431, 430. See Griggs v. Duke Power Co., p. 431. As for what “disparate impact” or “adverse impact” actually meant, the critical step came with the August 1978 “Uniform Guidelines on Employee

202

Notes

Selection Procedures,” a document drawing up operational prescriptions that the EEOC and the OFCC could rely on in their enforcement activities. The following was the key point: For any hiring test used by a firm subject to Title VII requirements, if the success rate achieved by any racial, ethnic or gender group is less than four-fifths of the rate of the most successful group, the test will be considered to have an adverse impact on the first group. (28 CFR § 50. 14 [1978], First part, §4)

22.

23. 24. 25. 26.

27. 28.

29. 30.

31. 32.

33.

Consequently, unless it could be justified as a matter of “business necessity,” such a test was to be held unlawful. Under this “four-fifths rule,” if, for instance, 50 percent of the white applicants and less than 40 percent of the black applicants succeeded on a given test, that test would have to be withdrawn and replaced by another one devoid of any adverse impact on women or ethnoracial minorities. Griggs v. Duke Power Co., p. 431. While in Griggs the Supreme Court set the burden of proof on the employer, it is up to the court to determine whether that burden has been met. As for the criteria underlying that determination, a case can be made that the notion of business necessity, by introducing the possibility of an exemption disconnecting the observation of an “adverse impact” from the invalidation of the procedure held to be responsible for it, bestows on judges the discretionary power of making some (usually implicit) cost benefit assessment of the different options involved. See Griggs v. Duke Power Co., pp. 426–427, 431–432. See Eric Schnapper, “Perpetuation of Past Discrimination,” Harvard Law Review, 96 (4), 1983, p. 832. See Guinn and Beal v. United States, 238 U.S. 347 (1915). This provision deliberately excluded blacks, who were not entitled to vote until the Fifteenth Amendment of 1870 came into force. Two-thirds of the black working population was employed as domestic servants or farm workers when the legislation was enacted. For a convincing argument that this was indeed a case of intentional discrimination, see Robert Lieberman, Shifting the Color Line: Race and the American Welfare State, Cambridge (Mass.), Harvard University Press, 1998. Gaston County v. United States, 395 U.S. 285 (1969). On the similar use of literacy tests in immigration legislation, see Gary Gerstle, American Crucible: Race and Nation in the Twentieth Century, Princeton, Princeton University Press, 2001, pp. 97, 389. See Douglas Rae, Douglas Yates, Jennifer Hochschild, Joseph Morone, and Carol Fessler, Equalities, Cambridge (Mass.), Harvard University Press, 1981, p. 71. Of course, the total number of minority applicants must be high enough for race-based test score discrepancies to be statistically significant. This condition is usually met for lower-middleclass jobs (firefighters, police officers, etc.), but not for more high-skilled ones, many of which are only accessible through “subjective” recruitment procedures—such as interviews—that do not always lead to a quantified assessment. This is one of the factors accounting for the “glass ceiling” that thwarts the upward mobility of members of the “protected classes”; see generally Elisabeth Bartholet, “Application of Title VII to Jobs in High Places,” Harvard Law Review, 95, 1982, pp. 947–1047. See supra, pp. 145–146. The U.S. Supreme Court Fourteenth Amendment-based decision San Antonio Independent School District v. Rodriguez also confirms this by holding that the reason why the poor as a group are not protected by the Equal Protection Clause is not only because that group is hard to delineate—“amorphous” is the word used in the majority opinion—but also because its members did not experience “a history of purposeful unequal treatment” to the same extent (San Antonio v. Rodriguez, p. 28; emphasis added). See Robert Margo, “Educational Achievement in Segregated School Systems: The Effects of ‘Separate-but-Equal,’” American Economic Review, 76 (4), 1986, pp. 794–801.

Notes

203

34. In other words, “to the extent that the baseline for determining disparate impact is equality among groups that are not equally productive, employment discrimination law becomes a mechanism for providing preferences in the guise of enforcing an antidiscrimination mandate” ( John Donohue, “The Law and Economics of Antidiscrimination Law,” Working Paper 11631, National Bureau of Economic Research, September 2005, p. 36, at http://www.nber. org/papers/w11631, accessed on March 24, 2007). 35. Griggs v. Duke Power Company, p. 431. 36. That increase was not as dramatic as one often assumes, however; see John Donohue and Peter Spiegelman, “The Changing Nature of Employment Discrimination Litigation,” Stanford Law Review, 43 (5), 1991, p. 998; Elaine Shoben, “Disparate Impact Theory in Employment Discrimination: What’s Griggs Still Good For? What Not?” Brandeis Law Journal, 42 (3), 2004, p. 597. 37. See supra, p. 173, note 32. 38. See United Steelworkers v. Weber, 443 U.S. 193 (1979), pp. 198–199. 39. U.S. Congress, Civil Rights Act of 1964. Title VII, section 703 (d). 40. See United Steelworkers v. Weber, pp. 197, 212. 41. Ibid., pp. 204–205. 42. Ibid., pp. 206–207. 43. See supra, p. 173, note 32. 44. United Steelworkers v. Weber, p. 204 (majority opinion of Justice Brennan; emphasis added). 45. The practical consequences of that increased vulnerability had also been made more serious by the 1975 Supreme Court decision Albermarle Paper Company v. Moody (422 U.S. 405 (1975)), which held that an employer found guilty of discrimination under Title VII had to provide back pay to the victims of such discrimination. This made the incentive for employers to more or less explicitly set up quotas all the greater as the financial costs that they were likely to shoulder if minorities were found to be underrepresented in their workforce rose to a considerable extent. 46. See Drew Days III, “Fullilove,” Yale Law Journal, 96 (3), 1987, p. 462, fn.30. 47. This is suggested by the fact that eight years later the Supreme Court—in an opinion once again authored by Brennan—would also confirm the validity under Title VII of an affirmative action program similar to the one at stake in Weber except for its having been set up by a public employer—to which the liberal rhetoric displayed in 1979 could not apply: see Johnson v. Santa Clara Transportation Agency, 480 U.S. 616 (1987). 48. On Weber, see also William Eskridge, Jr., Dynamics of Statutory Interpretation, Cambridge (Mass.), Harvard University Press, 1994, pp. 14–31, 37–44, 203–204, 304–305 ; Bernard Meltzer, “The Weber Case: The Judicial Abrogation of the Antidiscrimination Standard in Employment,” University of Chicago Law Review, 47 (3), 1980, pp. 423–466. 49. Connecticut v. Teal, 457 U.S. 440 (1982). 50. On Connecticut v. Teal, see also Epstein, Forbidden Grounds, pp. 226–229. 51. In other words, the Griggs decision arguably reflects the Supreme Court’s temptation to bring within the familiar analytical framework of “antidiscrimination law” all the obstacles that black Americans faced, including those whose existence was only dimly perceived at the time of the Civil Rights Act. On this broader tendency to preserve existing cognitive paradigms by making adjustments to allow them to account for new developments that may well—and often do—lead to challenging their overall validity ultimately, see Thomas Kuhn’s seminal analysis in The Structure of Scientific Revolutions, Chicago, University of Chicago Press, 1970 [1962], pp. 52–65. According to Kuhn, the increasing complexity of a paradigm resulting from such numerous adjustments usually paves the way for its demise. 52. See Fiss, “The Fate of an Idea,” pp. 766–767. 53. United States Department of Labor, Office of Policy Planning and Research, “The Negro Family: The Case for National Action,” March 1965. This report authored by President

204 54. 55.

56. 57.

58. 59.

60.

61. 62.

63.

Notes

Lyndon Johnson’s adviser Daniel Patrick Moynihan, while extremely controversial, did have a long-lasting influence on public perceptions of racial disadvantage. Alfred Blumrosen, Black Employment and the Law, Rutgers, Rutgers University Press, 1971, p. viii (emphasis added). In this respect, see also Paul Frymer, “Acting When Elected Officials Won’t: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935–1985,” American Political Science Review, 97 (3), 2003, pp. 483–499. See generally Kahlenberg, The Remedy. See William Julius Wilson, The Declining Significance of Race: Blacks and Changing American Institutions, Chicago, University of Chicago Press, 1978; Bart Landry, The New Black Middle Class, Berkeley, University of California Press, 1987; Mary Pattillo-McCoy, Black Picket Fences: Privilege and Peril among the Black Middle Class, Chicago, University of Chicago Press, 1999. See supra, p. 202, note 32. See Christopher Jencks and Meredith Phillips, eds., The Black-White Test Score Gap, Washington, DC, Brookings Institution, 1998. For an explanation of the related, decreasing yet still significant gap between the average performance of blacks and whites on IQ tests emphasizing the paralyzing effect of the anxiety of blacks induced by the prospect that lower scores on their part might be interpreted as confirming the validity of some partly internalized racist stereotypes, see Claude Steele and Joshua Aronson, “Stereotype Threat and the Intellectual Test Performance of African Americans,” Journal of Personality and Social Psychology, 69 (5), 1995, pp. 797–811. The study found that black scores were markedly lower when the test was openly described as being designed to quantitatively assess the subjects’ intelligence. But see also Roland Fryer and Steven Levitt, “The Black-White Test Score Gap through Third Grade,” Working Paper 11049, National Bureau of Economic Research, January 2005, at http://www.nber.org/papers/w11049 (accessed on March 24, 2007) and, for a critique of the stereotype threat argument, Paul R. Sackett, Chaitra M. Hardison, and Michael J. Cullen, “On Interpreting Stereotype Threat as Accounting for African American-White Differences on Cognitive Tests,” American Psychologist, 59 (1), 2005, pp. 7–13. See Bowen and Bok, The Shape of the River, p. 271; Linda Wightman, “The Threat to Diversity in Legal Education”; Maria Cancian, “Race-Based versus Class-Based Affirmative Action in College Admissions,” Journal of Policy Analysis and Management, 17 (1), 1998, pp. 94–105; Deborah Malamud, “Assessing Class-Based Affirmative Action,” Journal of Legal Education, 47 (4), 1997, pp. 452–471; Anthony Carnevale and Stephen Rose, Socioeconomic Status, Race/Ethnicity, and Selective College Admissions, Washington, DC, Century Foundation, 2003. In addition, one should keep in mind that those individuals who would not be classified as “disadvantaged” based on class are currently overrepresented in the group of black applicants whose grades and test scores are high enough for them to eventually gain admission to the most selective universities (while benefiting from some measure of affirmative action); see Bowen and Bok, The Shape of the River, p. 50. See Kahlenberg, The Remedy, p. 170; Richard Fallon, “Affirmative Action Based on Economic Disadvantage,” UCLA Law Review, 43 (6), 1996, p. 1927, fn. 47. In this respect, see also Chapin Cimino, “Class-Based Preferences in Affirmative Action Programs after Miller v. Johnson: A Race-Neutral Option or Subterfuge?” University of Chicago Law Review, 64 (4), 1997, pp. 1289–1310. California, Washington, Florida, and Michigan. In its 1996 decision Hopwood v. State of Texas, the United States Court of Appeals for the 5th Circuit outlawed affirmative action in admissions to state institutions of higher education in Texas, Mississippi, and Louisiana. Yet, that decision was practically overruled when the Supreme Court in 2003 eventually opted for holding valid some minimally flexible race-based affirmative action programs in Grutter v. Bollinger (see supra, p. 170, note 15; p. 164). Consequently, the most prestigious

Notes 64. 65. 66. 67. 68.

69. 70.

71. 72.

73. 74.

75. 76. 77. 78. 79. 80.

205

Texas state university, the University of Texas at Austin, reintroduced affirmative action in 2005 (although the other flagship institution, Texas A&M University, did not). Uniform Admission Policy Act, Texas Education Code (Ann.§ 51.805 (b) (2)). See Siobhan Gorman, “After Affirmative Action,” National Journal, August 4, 2000, p. 1120. Ibid., pp. 1120, 1123. See Peter Schrag, “Muddy Waters,” American Prospect, 43, 1999, p. 88. Set-asides are measures awarding a predefined percentage of public contracts to minorityowned businesses (Minority Business Enterprises). As a practical matter, “minority” means blacks, Hispanics, Asians, Native Americans, Eskimos and Aleuts, and, since 1987, women. Fullilove v. Klutznick, 448 U.S. 448 (1980). The set-aside challenged in Fullilove—and held to be constitutional by six of the nine justices, including Chief Justice Burger, who delivered the majority opinion—was a requirement that had to be met for the allocation of construction-oriented federal funds to state and local governments to take place. Linda Greenhouse, “Court Bars a Plan Set Up to Provide Jobs for Minorities,” New York Times, January 24, 1989, p. 1. See City of Richmond v. J. A. Croson Co., 109 S. Ct. 706 (1989), p. 721. The Court rejected the program as unconstitutional in spite of the fact that the 30 percent figure had been arrived at by applying a principle apparently endorsed in Fullilove. There, the 10 percent quota stipulated in the Public Works Employment Act had been deemed acceptable partly because it stood approximately halfway between the percentage of black contractors registered prior to the implementation of the policy and the proportion of blacks in the U.S. population as a whole. In Croson the 30 percent figure occupied about the same equidistant position between the percentage of blacks among city residents (50 percent) and the almost nonexistent proportion of Minority Business Enterprises among the Richmond-based contractors in the 1978–1983 period (0.67 percent); see Fullilove v. Klutznick, p. 513; City of Richmond v. J. A. Croson Co., pp. 714, 752. See Ian Ayres and Fredrick Vars, “When Does Private Discrimination Justify Public Affirmative Action?” Columbia Law Review, 98 (7), 1998, especially pp. 1611–1614. See City of Richmond v. J. A. Croson Co., pp. 713, 728. Six years later, the offensive against affirmative action in public contracting reached its acme in the Supreme Court’s Adarand Constructors, Inc. v. Pena decision. There, in a majority opinion once again delivered by Justice O’Connor, the Court eventually discarded the federal-versus-nonfederal-level-of-authority distinction and held that all race-based classifications had to meet the requirements of strict scrutiny, regardless both of who was to benefit and of what government unit the program was an emanation of (see Adarand Constructors, Inc. v. Pena, pp. 2101–2104). Through this uniformization of the legal regime applying to race-based classifications the Court finally broke with the previous conception that viewed Congress as being constitutionally entrusted with the special function of protecting blacks and, by extension, other racial minorities, a function that justified granting it more leeway in this respect. From then on “any person, of whatever race, ha[d] the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny” (Ibid., p. 2111). What follows partly derives from insights found in Ian Ayres’ enlightening article, “Narrow Tailoring,” UCLA Law Review, 43 (6), 1996, especially pp. 1786–1799. City of Richmond v. Croson, 488 U.S. 469 (1989), p. 506. Ibid., p. 510. Ibid., p. 507 (emphasis added). Ibid., p. 526 (emphasis added). As a practical matter, the “tailoring” issue mostly comes to the fore as part of the strict scrutiny requirement that only “suspect” classifications, such as those based on race, have to meet. While the formally “color-blind” measures considered by O’Connor and Scalia are definitely not “narrowly tailored” in relation to their actual goal of increasing the proportion of black contractors, they do not have to be, precisely because of their apparent color-blindness.

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81. Meir Dan-Cohen coined the phrase “acoustic separation” to identify such a disjunction of the expected audiences, leading judges to make allusions that only a fraction of the public is meant to fully understand; see Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law,” Harvard Law Review, 97 (3), 1984, pp. 625–677, as well as Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior, Princeton, Princeton University Press, 2006; Simone Chambers, “Behind Closed Doors: Publicity, Secrecy, and the Quality of Deliberation,” Journal of Political Philosophy, 12 (4), 2004, pp. 389–410. 82. Shaw v. Reno, 509 U.S. 630 (1993). 83. Baker v. Carr, 369 U.S. 186 (1962), p. 217. 84. Charles Beitz, “Equal Opportunity in Political Representation,” in Norman Bowie, ed., Equal Opportunity, Boulder, Westview, 1988, p. 162. 85. See Shaw v. Reno, pp. 681–682 (Justice Souter’s dissenting opinion). 86. Ibid., p. 647. 87. Ibid. 88. Ibid. 89. See Richard Pildes and Richard Niemi, “‘Expressive Harms,’ ‘Bizarre Districts,’ and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno,” Michigan Law Review, 92 (3), 1993, pp. 101–205, and, in a broader perspective, Wibren van der Burg, “The Expressive and Communicative Functions of Law, Especially with regard to Moral Issues,” Law and Philosophy, 20 (1), 2001, pp. 31–59. 90. Shaw v. Reno, p. 647. 91. See generally Robert Bork, The Tempting of America: The Political Seduction of the Law, New York, The Free Press, 1990. 92. As argued by Sunstein in One Case at a Time, pp. 120–122, 130–132. In the same vein, see also Mark Tushnet, Taking the Constitution Away from the Courts, Princeton, Princeton University Press, 1999; Adrian Vermeule, Judging under Uncertainty: An Institutional Theory of Legal Interpretation, Cambridge (Mass.), Harvard University Press, 2006. 93. See Jed Rubenfeld, “Affirmative Action,” Yale Law Journal, 107 (2), 1997, pp. 445–454. 94. Shaw v. Reno, p. 649 (Justice O’Connor’s majority opinion). 95. Ibid., p. 647. 96. Ibid. ( Justice O’Connor’s majority opinion; emphasis added). 97. Ibid., p. 672 (Justice White’s dissenting opinon). 98. For examples of such critiques, see Alexander Aleinikoff and Samuel Issacharoff, “Race and Redistricting: Drawing Constitutional Lines after Shaw v. Reno,” Michigan Law Review, 92 (3), 1993, pp. 588–651; Frank R. Parker, “The Constitutionality of Racial Redistricting: A Critique of Shaw v. Reno,” District of Columbia Law Review, 3, 1995, pp. 1–59; Kousser, ColorBlind Injustice, pp. 366–396. 99. Miller v. Johnson, 115 S.Ct. 2475 (1995), p. 2487. 100. Ibid., p. 2488 (emphasis added). 101. Regents of the University of California v. Bakke, p. 312 (quoting from Sweezy v. New Hampshire, 354 U.S. 234 (1957), p. 263 (Justice Frankfurter’s opinion)). 102. Ibid. As emphasized by Geoffrey Stone in his contribution to the review symposium “Free Speech and Academic Politics” (Perspectives on Politics, 4 (4), 2006, pp. 740–742), while private institutions may endorse the principle of academic freedom, the First Amendment as a binding source of that principle governs public universities only. 103. Regents of the University of California v. Bakke, p. 312 (the quote is from Keyishian v. Board of Regents, 385 U.S. 589 (1967), p. 603). 104. See Regents of the University of California v. Bakke, p. 404 (separate opinion by Justice Blackmun). It is worth pointing out that once this notion of “academic freedom” is invoked in connection with the curriculum (“what may be taught”) with a view to its “diversification,” the meaning of affirmative action changes as far as faculty hiring is concerned. On the

Notes

105. 106.

107. 108.

109.

110. 111. 112. 113. 114. 115. 116. 117. 118. 119.

120.

121.

207

one hand, the extension of the diversity argument to this new domain works to facilitate affirmative action, since the advancement of a discipline such as African American Studies leads to job openings that are bound to benefit a majority of black applicants. On the other hand, however, the multiculturalist trend evidenced by the creation of ethnic studies programs and/or departments, insofar as it relies on the correlation between “race” and “perspective” posited in Bakke, incorporates an implicit denial of the very existence of affirmative action: if one takes that correlation for granted, it seems that—everything else being equal—a minority candidate would indeed be more qualified to teach the history and culture of the group to which he himself belongs than a nonminority candidate, given his greater familiarity with the specific “experience” to be considered. The minority applicant’s success in obtaining this kind of position can then be accounted for without “preferential treatment” ever entering the picture; insofar as race itself becomes a “qualification,” the antimeritocratic aspect of affirmative action tends to disappear . . . For examples of the widespread tendency of university officials to consider ethnic studies programs as an instrument for facilitating the recruitment of blacks and Hispanics within the faculty, see Posner, The Economics of Justice, pp. 384–385; Todd Gitlin, The Twilight of Common Dreams, New York, Holt, 1995, pp. 155–158. Regents of the University of California v. Bakke, p. 315. Ibid., p. 316. That quote is taken from what was then the Harvard undergraduate affirmative action plan, a program Powell found constitutionally admissible and presented as a model for public universities. Ibid., pp. 317–318. As a practical matter, this quest for “diversity” only comes into play once the group of applicants who are minimally qualified according to conventional criteria such as grades and scores has been identified. In some elite universities, however, above this (relatively high) threshold of minimal qualification, all applicants tend to be considered as equally qualified, which then often turns their unequal potential for increasing the diversity of the student body into a tiebreaking factor. On the historical construction of “merit” as an instrument for the preservation of power by the ruling class, see Jerome Karabel, The Chosen: The Real Story of Admissions at Harvard, Yale, and Princeton, Boston, Houghton-Mifflin, 2005. “Brief of President and Fellows of Harvard College,” Amicus Curiae, DeFunis v. Odegaard (quoted in Regents of the University of California v. Bakke, p. 322). See Marcia Graham Synnott, The Half-Opened Door: Discrimination and Admissions at Harvard, Yale, and Princeton, 1900–1970, Westport, Greenwood, 1979, p. 107, fn. 29. See Dan Oren, Joining the Club: A History of Jews and Yale, New Haven, Yale University Press, 1985, p. 40; Lacorne, La Crise de l’identité américaine, p. 319. Lacorne, La Crise de l’identité américaine, p. 319. See Alan Dershowitz and Laura Hanft, “Affirmative Action and the Harvard College DiversityDiscretion Model: Paradigm or Pretext?” Cardozo Law Review, 1, 1979, pp. 393–394. See Oren, Joining the Club, p. 55; Synnott, The Half-Opened Door, p. 145, fn. 29. See Oren, Joining the Club, p. 53. See Dershowitz and Hanft, “Affirmative Action,” pp. 396–397. See generally Elster, Local Justice, pp. 116–120. Ibid., p. 123. Another example of such substitution strategies is the indirect but intentional “discrimination” already discussed in relation to some allegedly “class-based” yet raceoriented affirmative action programs: in both cases a policy is introduced because of its expected disproportionate impact—whether negative or positive—on a given group: see supra, pp. 130–131. See Dershowitz and Hanft, “Affirmative Action,” pp. 395–396, 411–412. As a general matter, white Anglo-Saxon Protestants are more evenly distributed across the United States than are blacks, Jews, and Catholics. Grutter v. Bollinger, 539 U.S. 306 (2003), p. 337.

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122. Emphasis added. 123. “The New Admissions Plan,” The Gadfly [student newspaper], May 1926, p. 4 (quoted in Dershowitz and Hanft, “Affirmative Action,” pp. 390–391). 124. See supra, pp. 141–142. 125. See Synnott, The Half-Opened Door, pp. 155–157, fn. 29. 126. See Michael Lind, The Next American Nation: The New Nationalism and the Fourth American Revolution, New York, The Free Press, 1995, p. 64. 127. Amicus curiae briefs are memoranda filed with the Supreme Court by associations that have an interest in how the Court will decide a pending case. 128. See Dershowitz and Hanft, “Affirmative Action,” pp. 412–413. 129. See generally Harry Kitano and Roger Daniels, eds., Asian Americans: Emerging Minorities, Upper Saddle River, Prentice Hall, 2001; Pyong Gap Min, ed., Asian Americans: Contemporary Trends and Issues, Thousand Oaks, Pine Forge Press, 2006; Frank H. Wu, Yellow: Race in America beyond Black and White, New York, Basic Books, 2002. 130. In 2000, the graduation rate for Asians was about 54 percent––as against 34 percent for whites; see generally The Mortenson Research Seminar on Public Policy Analysis of Opportunity for Postsecondary Education, “Higher Education Equity Indices by Race/Ethnicity and Gender, 1940–2000,” Postsecondary Education Opportunity, 110, 2002. 131. See Selena Dong, “Too Many Asians: The Challenge of Fighting Discrimination against Asian Americans and Preserving Affirmative Action,” Stanford Law Review, 47, May 1995, p. 1028; Andrew Hacker, “Education: Ethnicity and Achievement,” in Nicolaus Mills, ed., Debating Affirmative Action, New York, Delta, 1994, p. 220. 132. See “Undergraduate and Financial Aid Profile of the Class of 1999,” Alumni Committee Newsletter, Yale University, September 1995, pp. 6–7; Lacorne, La Crise de l’identité américaine, p. 323, fn.1; Jerry Kang, “Negative Action against Asian-Americans,” Harvard Civil RightsCivil Liberties Review, 31 (1), 1996, p. 14. 133. The admission rate of a given group is the proportion of group members who were admitted out of the number of those who applied: if 100 blacks apply and 10 are admitted, the admission rate is 10 percent. 134. See Karabel, Freshman Admissions, p. 15; Jerry Kang, “Negative Action against Asian Americans,” p. 3. 135. See John Bunzel and Jeffrey Au, “The Asian Difference,” in Nieli, ed., Racial Preference, pp. 459–463; Grace Tsuang, “Assuring Equal Access of Asian Americans to Highly Selective Universities,” Yale Law Journal, 98 (3), 1989, pp. 660–661. Disclaimers by university officials notwithstanding, neither the valorization of extracurricular activities (in which white applicants allegedly engage more often) nor a concern for reaching a balance between potential humanities and science majors (under the notion that Asian students disproportionately end up among the latter) can account for this discrepancy; see Bunzel and Au, “The Asian Difference,” pp. 464, 466. 136. See generally Charles McClain, In Search of Equality; Lucy Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law, Chapel Hill, University of North Carolina Press, 1995. 137. See, for example, Patricia Conley, “The Allocation of College Admission,” in Elster, ed., Local Justice in America, New York, Russell Sage Foundation, 1995, pp. 59–60. In particular, there are reasons to believe that the advantage enjoyed by blacks and Hispanics in university admissions is usually larger than the one often awarded to athletes and children of alumni; see Richard Kahlenberg, The Remedy, p. 241. 138. Regents of the University of California v. Bakke, p. 314. 139. Yet, a state university seeking to promote religious diversity in the selection of its student body would be prevented from doing so by the First Amendment: see Volokh, “Diversity,” pp. 2070–2072.

Notes

209

140. See Rodolfo de la Garza, et al., Latino Voices: Mexican, Puerto Rican, and Cuban Perspectives on American Politics, Boulder, Westview, 1992, p. 40; Ronald Takaki, Strangers from a Different Shore: A History of Asian Americans, Harmondsworth, Penguin, 1990, pp. 421, 432 ; Miranda Oshige McGowan, “Diversity of What?” Representations, 57, Summer 1996, p. 133. On the protests triggered by the noninclusion of Asian Americans among the beneficiaries of the affirmative action policy implemented by the Stanford Law School in the 1990s, see Paul Brest and Miranda Oshige, “Affirmative Action for Whom?” Stanford Law Review, 47 (5), 1995, pp. 855–856. These protests were based on the fact that the internal diversity of the group of Asian applicants had not been taken into account, and that some Asian subgroups defined in terms of national origin remained markedly underrepresented as a result. 141. United States v. Virginia, 518 U.S. 515 (1996). 142. United States v. Virginia, pp. 17–22. 143. United States v. Virginia, electronic edition (reproduced in Donald Kommers and John Finn, American Constitutional Law, vol. 2, Belmont, CA, West/Wadsworth, 1998, pp. 838–839 (emphasis added)). 144. See Jencks and Phillips, eds., The Black-White Test Score Gap; Jeffrey Rosen, “Is Affirmative Action Doomed?” The New Republic, October 17, 1994, p. 30. 145. Dworkin, A Matter of Principle, p. 311. 146. Regents of the University of California v. Bakke, p. 379. 147. See Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism, Cambridge, Polity, 2001, p. 343, fn.3. 148. See Regents of the University of California v. Bakke, pp. 321–324. 149. Ibid., p. 316. 150. Ibid., p. 323. 151. See Dershowitz and Hanft, “Affirmative Action,” p. 383. 152. Regents of the University of California v. Bakke, p. 318 (emphasis added). 153. Ibid., pp. 318–319. 154. Dworkin, A Matter of Principle, p. 309. 155. Regents of the University of California v. Bakke, p. 319, fn.53 (emphasis added; the quote is from the decision Offutt v. United States, 348 U.S. 11 (1954), p. 14). On the issue of whether the Supreme Court should—and does—respond to public opinion, see Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America, New York, Oxford University Press, 2006; Kevin T. McGuire and James A. Stimson, “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences,” Journal of Politics, 66 (4), 2004, pp. 1018–1035. 156. See Paul Peterson, “A Politically Correct Solution,” in Paul Peterson, ed., Classifying by Race, Princeton, Princeton University Press, 1995, pp. 3–21. 157. See John Rawls, Political Liberalism, New York, Columbia University Press, 1993, pp. 235–237; Owen Fiss, “The Supreme Court, 1978 Term—Foreword: The Forms of Justice,” Harvard Law Review, 93, November 1979, pp. 51–52. 158. On multiculturalism, see generally Amy Gutmann, ed., Multiculturalism: Examining the Politics of Recognition, Princeton, Princeton University Press, 1992; Anne Phillips, Multiculturalism Without Culture, Princeton, Princeton University Press, 2007; Sarah Song, Justice, Gender, and the Politics of Multiculturalism, Cambridge, Cambridge University Press, forthcoming. 159. See Hollinger, Postethnic America; “How Wide the Circle of the ‘We’? American Intellectuals and the Problem of Ethnos since World War II,” American Historical Review, 98 (2), 1993, pp. 317–337; “The Disciplines and the Identity Debates, 1970–1995,” Daedalus, 126 (1), 1997, pp. 333–351; “National Solidarity at the End of the Twentieth Century: Reflections on the United States and Liberal Nationalism,” Journal of American History, 84 (2), 1997, pp. 559–569; “National Culture and Communities of Descent,” Reviews in American History, 26, March 1998, pp. 312–328; “Amalgamation and Hypodescent: The Question of Ethnoracial Mixture in the History of the United States,” American Historical Review, 108 (5),

210 160.

161.

162.

163. 164. 165. 166. 167. 168. 169. 170. 171.

172.

173. 174. 175. 176. 177.

Notes

2003, pp. 1363–1390; “The One Drop Rule and the One Hate Rule,” Daedalus, 134 (1), 2005, pp. 18–28. In addition to what follows, see Walter Benn Michaels, “From Race into Culture: A Critical Genealogy of Cultural Identity,” Critical Inquiry, 18 (4), Spring–Summer 1992, pp. 655–685; The Trouble with Diversity: How We Learned to Love Identity and Ignore Inequality, New York, Metropolitan, 2006, and the superb essay by Richard Thompson Ford, Racial Culture: A Critique, Princeton, Princeton University Press, 2005 (especially pp. 44–48). See generally Michèle Lamont and Marcel Fournier, eds., Cultivating Differences: Symbolic Boundaries and the Making of Inequality, Chicago, University of Chicago Press, 1992; Riva Kastoryano, ed., Les Codes de la différence: race – origine – religion. France – Allemagne – ÉtatsUnis, Paris, Presses de Sciences Po, 2005. The pentagon is now a hexagon, since the former “Asian and Pacific Islander” category was eventually divided into lists of separate “Asian” and “Native Hawaiian and Other Pacific Islander” subcategories in the 2000 census. See Desmond King and Rogers M. Smith, “Racial Orders in American Political Development,” American Political Science Review, 99 (1), 2005, pp. 75–92. See Hollinger, Postethnic America, pp. 8, 25, 32–33, 49; “The Disciplines and the Identity Debates,” p. 342. See Hollinger, Postethnic America, p. 25. Martin Bernal, Black Athena: The Afroasiatic Roots of Classical Civilization, London, Vintage; New Brunswick, Rutgers University Press, 1989. Ibid, vol. 1, The Fabrication of Ancient Greece, p. 242. See Hollinger, Postethnic America, pp. 124–127; “National Culture and Communities of Descent,” pp. 318–320. See Hollinger, Postethnic America, pp. 25, 36. Ibid., pp. 124, 128–129. See Horace Kallen, Culture and Democracy in the United States: Studies in the Group Psychology of the American Peoples, New York, Boni and Liveright, 1924, especially pp. 122–123, 184–185. This volume brings together a variety of articles written during the 1910s. The most famous one is entitled “Democracy versus the Melting Pot” (1915). This is also true of the approach of diversity developed by the other major “forefather” of American multiculturalism, Randolph Bourne, whose essay “Transnational America” came out in 1916; see Randolph Bourne, “Trans-National America,” Atlantic Monthly, 118, July 1916, pp. 86–97, as well as John Higham, Send These to Me: Immigrants in Urban America, New York, Atheneum, 1975, p. 208; Glazer, We Are All Multiculturalists Now, pp. 101–102, 110, 112. See Robert Park, Race and Culture, Glencoe, The Free Press, 1950, p. 208. See Desmond King, Making Americans: Immigration, Race, and the Origins of the Diverse Democracy, Cambridge (Mass.), Harvard University Press, 2000, pp. 30, 35. See Horace Kallen, Cultural Pluralism and the American Idea: An Essay in Social Philosophy, Philadelphia, University of Pennsylvania Press, 1956, p. 98. See Chang-Lin Tien, “Diversity and Excellence in Higher Education,” in Mills, ed., Debating Affirmative Action, p. 245. See Hacker, “Education: Ethnicity and Achievement,” pp. 221–222. That the white graduation rate was about twice as high as the black one was later confirmed by a 1992 National Center for Educational Statistics study; see Kahlenberg, The Remedy, pp. 66–67. Presently the nationwide college graduation rate for black students hovers around 40 percent, compared to 60 percent for white students: see “The Persisting Racial Gap in College Student Graduation Rates,” Journal of Blacks in Higher Education, 45, Autumn 2004, pp. 77–85. Similarly, only 57 percent of African Americans who enrol in law schools ultimately graduate and pass the bar, as compared to 83 percent of white students: see Timothy Clydesdale, “A Forked River Runs Through Law School: Towards Understanding Race, Gender, Age and Related Gaps in Law School Performance and Bar Passage,” Law and Social Inquiry, 29 (4), 2004, p. 727.

Notes

211

178. See Bowen and Bok, The Shape of the River, pp. 55–59. 179. See Kahlenberg, The Remedy, p. 67, and, for other similar data, pp. 66–69, p. 242, fn.131, as well as John Bunzel, “Affirmative Action Admission: How It Works at UC Berkeley,” The Public Interest, Fall 1988, p. 111. 180. See Signithia Fordham and John Ogbu, “Black Students’ School Success: Coping with the Burden of ‘Acting White,’ ” Urban Review, 18 (3), 1986; for a contradictory view, see Karolyn Tyson, William Darity, and Domini Castellino, “It’s not ‘a Black Thing’: Understanding the Burden of ‘Acting White’ and Other Dilemmas of High Achievement,” American Sociological Review, 70 (4), 2005, pp. 582–605. 181. See Dinesh D’Souza, Illiberal Education: The Politics of Race and Sex on Campus, New York, The Free Press, 1991, pp. 50–51, 244–247. 182. See Ellen Franken Paul, “Careers Open to Talents,” in Steven Cahn, ed., Affirmative Action and the University, Philadelphia, Temple University Press, 1993, p. 257. 183. See Linda Gottfredson, “The Science and Politics of Race Norming,” American Psychologist, November 1994, pp. 955–963. 184. See Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification, Cambridge (Mass.), Harvard University Press, 1995, p. 231. For other, similar examples, see Abigail Thernstrom and Stephan Thernstrom, “Reflections on The Shape of the River,” UCLA Law Review, 46 (5), 1999, pp. 1589–1592. 185. Interview, Yale Law School, March 11, 1997. 186. Regents of the University of California v. Bakke, p. 314 (emphasis added). 187. See Carter, Reflections, p. 6. 188. As intimated by the former dean of the Yale Law School, Anthony Kronman, it may well be possible to counter this objection by arguing that the distinctive experiences of blacks and Hispanics—leading to the formation of a range of specific beliefs and judgments on their part as to the existing political and institutional order that ought to be taken into account in all instances of public deliberation, including those occurring within universities—are entirely accounted for by the persistence of school and housing segregation. Yet, this—otherwise convincing—argument somewhat paradoxically relies on the existence of a sociological fact that is both negative and contingent and therefore ought to be a target for government intervention in its own right, as Kronman willingly acknowledges; see Anthony Kronman, “Is Diversity a Value in American Higher Education?” Florida Law Review, 52, December 2000, pp. 879–880, 883–885. 189. Posner, The Economics of Justice, p. 366. 190. Regents of the University of California v. Bakke, p. 314. 191. See, for example, Duncan Kennedy, “A Cultural Pluralist Case for Affirmative Action in Legal Academia,” in Crenshaw et al., ed., Critical Race Theory, pp. 159–176 ; Jonathan Alger, “The Educational Value of Diversity,” Academe, January–February 1997, pp. 20–23; Charles Lawrence III, “Foreword: Race, Multiculturalism, and the Jurisprudence of Transformation,” Stanford Law Review, 47, May 1995, pp. 819–847. 192. Mari Matsuda, “Looking to the Bottom: Critical Legal Studies and Reparations,” in Crenshaw et al., ed., Critical Race Theory, pp. 75, 63. 193. See Iris Marion Young, Justice and the Politics of Difference, p. 186; Brest and Oshige, “Affirmative Action for Whom?” p. 862. 194. Kronman, “Is Diversity a Value?” p. 881. 195. Ibid., pp. 881–885. 196. Michel Feher, “Identités en évolution: individu, famille et communauté aux États-Unis,” Esprit, 212, 1995, p. 123. 197. See Julie Thermes, Essor et déclin de l’affirmative action: Les étudiants noirs à Harvard, Yale et Princeton, Paris, CNRS éditions, 1999, pp. 111–132. 198. William Simmons, “Proposals for an American Cultures Requirement,” Report by the Special Committee on Education and Ethnicity, University of California (Berkeley), March 1989, pp. 3–4 (on file with author).

212

Notes

199. See Thomas J. LA Belle and Christopher R. Ward, Ethnic Studies and Multiculturalism, Albany, State University of New York Press, 1996, pp. 67–89. 200. The same reasoning applies to the presence on campus of “Ethnic Deans” and “Minority Student Coordinators” (interviews with black and Hispanic undergraduate students, University of Chicago, May 1996, Yale University, April 1997). 201. See Denis Lacorne, “Des Coups de canon dans le vide? La ‘civilisation occidentale’ dans les universités américaines,” Vingtième siècle, 43, 1994, pp. 4–17. 202. See Arthur Levine and Jeannette Cureton, “The Quiet Revolution: Eleven Facts about Multiculturalism and the Curriculum,” Change: The Magazine of Higher Learning, 24 (1), 1992, pp. 25–29. 203. On the extension of the ideology of diversity to the corporate realm starting from the second half of the 1980s, see Erin Kelly and Frank Dobbin, “How Affirmative Action Became Diversity Management: Employer Response to Antidiscrimination Law, 1961 to 1996,” American Behavioral Scientist, 41 (7), 1998, pp. 960–984; Lauren Edelman, Sally Riggs-Fuller, and Iona Mara-Drita, “Diversity Rhetoric and the Managerialization of Law,” American Journal of Sociology, 106 (6), 2001, pp. 1589–1641. 204. See Lawrence Fuchs, The American Kaleidoscope: Race, Ethnicity, and the Civic Culture, Hanover, Wesleyan University Press, 1990, pp. 365–371. 205. See Lacorne, La Crise de l’identité américaine, pp. 88–91, 278–279. 206. Ibid., p. 88. 207. See Hollinger, Postethnic America, p. 87; Lacorne, La Crise de l’identité américaine, p. 222. 208. There is now a substantial scholarly literature on the interplay between foreign policy developments and the advent of a more inclusive conception of the U.S. political community: see generally Philip Klinkner and Rogers M. Smith, The Unsteady March: The Rise and Decline of Racial Equality in America, Chicago, University of Chicago Press, 1999; Mary Dudziak, Cold War Civil Rights: Race and the Image of American Democracy, Princeton, Princeton University Press, 2000; Daniel Kryder, Divided Arsenal: Race and the American State during World War II, New York, Cambridge University Press, 2000; Azza Salama Layton, International Politics and Civil Rights Policies in the United States, 1941–1960, New York, Cambridge University Press, 2000; Thomas Borstlemann, The Cold War and the Color Line: American Race Relations in the Global Arena, Cambridge (Mass.), Harvard University Press, 2001; John David Skrentny, The Minority Rights Revolution, Cambridge (Mass.), Harvard University Press, 2002, pp. 21–84; Jonathan Rosenberg, How Far the Promised Land? World Affairs and the American Civil Rights Movement from the First World War to Vietnam, Princeton, Princeton University Press, 2006. 209. See Tony Smith, Foreign Attachments: The Power of Ethnic Groups in the Making of American Foreign Policy, Cambridge (Mass.), Harvard University Press, 2000, chapter 2. 210. See Elster, Local Justice, pp. 58–59. 211. See David Broder, “Diversity Was Paramount in Building the Cabinet,” Washington Post, December 25, 1992, p. A1. 212. See Fuchs, The American Kaleidoscope, p. 398. 213. Phillipe Raynaud, “Multiculturalisme et démocratie,” Le Débat, 97, 1997, pp. 156, 154 (italics in the text). 214. Ibid., p. 155.

General Conclusion 1. As decided by the Fifth Circuit Court of Appeals in Hopwood v. State of Texas, 78 F.3d 932 (5th Circuit 1996). On the extent of that drop in Texas and other states that got rid of affirmative action in the second half of the 1990s, see Thernstrom and Thernstrom, “Reflections,”

Notes 2.

3.

4.

5.

6. 7. 8.

9.

10.

11. 12. 13. 14. 15.

16. 17. 18.

213

pp. 1626–1627; Rachel Moran, “Diversity and Its Discontents: The End of Affirmative Action at Boalt Hall,” California Law Review, 88, December 2000, pp. 2241–2352. See Uniform Admission Policy Act (Texas Education Code Ann. §§ 51.801–51.805), as well as Lani Guinier and Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy, Cambridge (Mass.), Harvard University Press, 2002, pp. 69–74. On the legislative history of the “ten-percent plan,” see David Montejano, “Maintaining Diversity at the University of Texas,” in Post and Rogin, eds., Race and Representation, pp. 362–366. On the specific missions and constraints of public universities, see generally John Aubrey Douglass, The Conditions for Admission: Access, Equity, and the Social Contract of Public Universities, Stanford, Stanford University Press, 2007. See Erica Frankenberg, Chungmei Lee, and Gary Orfield, A Multiracial Society with Segregated Schools: Are We Losing the Dream? (January 2003), at http://www.civilrightsproject.harvard.edu/ research/reseg03/AreWeLosingtheDream.pdf (accessed on March 23, 2007); Michelle Wilde Anderson, “Colorblind Segregation: Equal Protection as a Bar to Neighborhood Integration,” California Law Review, 92 (3), 2004, pp. 841–884. See Jencks and Phillips, The Black-White Test Score Gap; Abigail Thernstrom and Stephan Thernstrom, No Excuses: Closing the Racial Gap in Learning, New York, Simon and Schuster, 2003. Glenn Loury, The Anatomy of Racial Inequality, Cambridge (Mass.), Harvard University Press, 2002, p. 134. See Bowen and Bok, The Shape of the River, pp. 31–39. Grutter v. Bollinger, 539 U.S. 306 (2003). Justice Sandra O’Connor wrote the majority opinion. She was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Gratz v. Bollinger, 539 U.S. 244 (2003). Chief Justice Rehnquist wrote the majority opinion. He was joined by Justices Sandra O’Connor, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Stephen Breyer. See also Ian Ayres and Sydney Foster, “Don’t Tell, Don’t Ask: Narrow Tailoring after Grutter and Gratz,” Texas Law Review, 85 (3), 2007, pp. 517–583; Jessica Bulman-Pozen, “Grutter at Work: A Title VII Critique of Constitutional Affirmative Action,” Yale Law Journal, 115 (6), 2006, pp. 1408–1448; Jack Balkin, “Plessy, Brown, and Grutter: A Play in Three Acts,” Cardozo Law Review, 26 (5), 2005, pp. 1689–1730; Peter Schuck, “Reflections on Grutter,” Yale Law School, Public Law Working Paper No. 61, 2003, at http://jurist.law.pitt.edu/ forum/symposium-aa/schuck.php (accessed on March 23, 2007). Gratz v. Bollinger (dissenting opinion of Justice Souter, at http://www.law.cornell.edu/supct/ html/02–516.ZD1.html (accessed on March 23, 2007)). Gratz v. Bollinger (dissenting opinion of Justice Ginsburg, at http://www.law.cornell.edu/ supct/html/02–516.ZD2.html (accessed on March 23, 2007)). Gratz v. Bollinger (dissenting opinion of Justice Souter, at http://www.law.cornell.edu/supct/ html/02–516.ZD1.html (accessed on March 23, 2007)). See, for example, Jonathan Chait, “Numbers Racket,” The New Republic, December 22, 1997, p. 8. See Rawls, A Theory of Justice, p. 84. On this compliance as being one of the main conditions for each individual’s sense of security and ability to project oneself into the future, see Larmore, Patterns, pp. 40–41. See Susan Sturm, “Second-Generation Employment Discrimination: A Structural Approach,” Columbia Law Review, 101 (3), 2001, pp. 953–1036. See Machiavelli, The Prince, trans. George Bull, London, Penguin, 1961 [1514], p. 71. See Rawls, A Theory of Justice, pp. 130, 133; Huntington, American Politics, pp. 188–196. As emphasized by Charles Larmore, it is from the Dworkinian principle of equality as equal respect and concern shown by the state to individuals under its jurisdiction that flows the requirement for state actors to inform those individuals of the reasons for their actions; see Larmore, Patterns, p. 75.

214

Notes

19. For a tentative typology, see Dennis Thompson, “Democratic Secrecy,” Political Science Quarterly, 114 (2), 1999, pp. 185–192. 20. Jon Elster, Ulysses and the Sirens: Studies in Rationality and Irrationality, Cambridge, Cambridge University Press; Paris, Maison des Sciences de l’Homme, 1979, p. 83; see also Sarah Buss, “Valuing Autonomy and Respecting Persons: Manipulation, Seduction, and the Basis of Moral Constraints,” Ethics, 115 (2), 2005. 21. See Dworkin, Taking Rights Seriously, pp. 24–27. 22. John Crowley, Immigration, “relations raciales” et mobilisations minoritaires au Royaume-Uni: La démocratie face à la complexité sociale, Institut d’études politiques de Paris, 1995 [thèse de doctorat, département d’Études politiques], p. 300. 23. See generally Vincent Descombes, “Philosophie du jugement politique,” La Pensée politique, 2, 1994, pp. 131–157. 24. See Immanuel Kant, “Perpetual Peace,” in Immanuel Kant, On History, Lewis Beck ed., New York, Bobbs-Merrill, 1963, pp. 129–135. 25. See generally David Luban, “The Publicity Principle,” in Robert Goodin, ed., The Theory of Institutional Design, Cambridge, Cambridge University Press, 1996, pp. 189–191. 26. Philippe Raynaud, “De la liberté au pouvoir. Réflexions sur le patriotisme américain,” La Pensée politique, 3, 1995, p. 72 (italics omitted). 27. Ibid., p. 73. 28. Philippe Raynaud, “La démocratie saisie par le droit,” Notes de la Fondation Saint-Simon, September 1995, p. 25.

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INDEX

Adarand Constructors, Inc. v. Pena, 115 S.Ct. 2097 (1995), 170 n.15, 180 n.63, 205 n.74 Albermarle Paper Company v. Moody, 422 U.S. 405 (1975), 203 n.45 Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936), 178 n.4 Associated General Contractors of Massachusetts, Inc. v. Altshuler, 490 F.2d 9 First Circuit (1973), 174 Baker v. Carr, 369 U.S. 186 (1962), 206 n.83 Bakke v. Regents of the University of California, 18 Cal. 3d 34 (1976), 185 n.81 Batson v. Kentucky, 476 U.S. 79 (1986), 181 n.79 Beauharnais v. Illinois, 343 U.S. 250 (1952), 193 n.177 Bolling v. Sharpe, 347 U.S. 497 (1955), 173 n.33 Bowen v. Gilliard, 483 U.S. 587 (1987), 183 n.47 Brown v. Board of Education of Topeka, 387 U.S. 483 (1954), 58, 60, 61, 173 n.33, 183 City of Cleburne v. Cleburne Living Center, 473 U.S. 332 (1985), 173 n.36, 174 n.37

OF

CASES

City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), 132–135, 138, 139, 174, 175 n.8, 197 n.1, 205 Connecticut v. Teal, 457 U.S. 440 (1982), 127–128, 203 Craemer v. Virginia Commonwealth University, 415 F. Supp. 673 (1976), 201 n.14 Craig v. Boren, 429 U.S. 190 (1976), 174 DeFunis v. Odegaard, 416 U.S. 312 (1974), 199 n.39, 207 n.110 DiLeo v. Board of Regents of the University of Colorado, 196 Colo. 216, 590 P. 2d 486 Colo. (1978), 178 n.8 Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), 181 n.79 Frontiero v. Richardson, 411 U.S. 677 (1973), 59, 183 n.47 Fullilove v. Klutznick, 448 U.S. 448 (1980), 175 n.18, 197 n.1, 198 n.14, 205 Gaston County v. United States, 395 U.S. 285 (1969), 122, 202 n.27 Georgia v. McCollum, 505 U.S. 42 (1992), 181 n.79 Gratz v. Bollinger, 539 U.S. 244 (2003), 164–165, 213

240

Index of Cases

Griggs v. Duke Power Company, 401 U.S. 424 (1971), 27, 28, 90, 116, 118–124, 125, 126, 127, 128, 129, 195 n.3, 201, 202, 203 Grutter v. Bollinger, 539 U.S. 306 (2003), 164, 204 n.63, 207 n.121, 213 n.8 Guinn and Beal v. United States, 238 U.S. 347 (1915), 202 n.25 Hazelwood School District v. United States, 433 U.S. 229 (1977), 177 n.44 Hopwood v. State of Texas, 78 F.3d 932 (Fifth Circuit 1996), 113, 170 n.15, 199 n.38, 204 n.63, 212 n.1 Hughes v. Superior Court, 339 U.S. 460 (1949), 193 n.184 International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), 177 n.44 Johnson v. Santa Clara Transportation Agency, 480 U.S. 616 (1987), 203 n.47 Keyishian v. Board of Regents, 385 U.S. 589 (1967), 140, 206 n.103 Korematsu v. United States, 323 U.S. 214 (1944), 61, 174 n.39, 183 n.53 Lockhart v. McCree, 476 U.S. 162 (1986), 183 n.47 McAdams v. Regents of the University of Minnesota, 508 F. Supp. 354 D. Minn (1981), 178 n.8 McCleskey v. Kemp, 481 U.S. 279 (1987), 75, 189 n.137, 190 Metro Broadcasting, Inc. v. Federal Communications Commission et. al., 497 U.S. 547 (1990), 41–42, 67, 176–77 n.40, 180, 185 n.80 Miller v. Johnson, 515 U.S. 900 (1995), 138–139, 206

NAACP v. Allen, 493 F.2d 614 Fifth Circuit (1974), 174 Offutt v. United States, 348 U.S. 11 (1954), 209 n.155 Palmer v. Thompson, 403 U.S. 217 (1971), 52, 181 n.15 Palmore v. Sidoti, 466 U.S. 329 (1982), 66, 185 Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), 181 n.77 Plessy v. Ferguson, 163 U.S. 537 (1896), 61, 183 Powers v. Ohio, 499 U.S. 400 (1990), 181 n.79 Regents of the University of California v. Bakke, 438 U.S. 265 (1978), 1, 5, 7, 17, 18, 28, 31–40, 41, 42, 44, 45, 46, 48, 90, 108, 126, 132, 139–151, 157–158, 160, 161, 162, 163, 164, 168, 175, 177 n.45, 178, 179, 180, 185 n.92, 195 n.6, 197 n.1, 206, 207, 208, 209, 211 San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), 174 n.40, 202 n.32 Shapiro v. Thompson, 394 U.S. 618 (1968), 174 n.40 Shaw v. Reno, 509 U.S. 630 (1993), 132, 135–139, 206 Strauder v. West Virginia, 100 U.S. 303 (1879), 61, 183 n.51 Sweezy v. New Hampshire, 385 U.S. 589 (1957), 140, 179 n.48, 206 n.101 United Jewish Organizations v. Carey, 430 U.S. 144 (1977), 197 n.1 United States v. Carolene Products, 344 U.S. 144 (1938), 35, 178 n.15

Index of Cases

241

United States v. Masonry Contractors Association of Memphis, Inc., 497 F.2d 871 Sixth Circuit (1974), 174 United States v. Paradise, 480 U.S. 189 (1987), 177 n.41 United States v. Virginia, 518 U.S. 515 (1996), 147–148, 209 United Steelworkers v. Weber, 443 U.S. 193 (1979), 124–127, 128, 140, 176 n.40, 203

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 (1972), 183 n.47 West Coast Hotel Company v. Parrish, 300 U.S. 379 (1937), 38, 179 n.39 Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), 36, 41, 178 n.23, 180 n.53, 196 n.21

Washington v. Davis, 426 U.S. 229 (1976), 75, 137

Yick Wo v. Hopkins, 118 U.S. 356 (1886), 179 n.26

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GENERAL

INDEX

Entries other than names of persons and places—notions, organizations, etc.—are in bold characters. So are the pages or page ranges where the corresponding topic is treated most extensively. Statutes are in italics. Terms whose occurrence is too frequent for them to be useful as entries in this index (“affirmative action,” “blacks,” “equality,” “discrimination,” “race,” “law”; “Supreme Court”. . .) are omitted. Ackerman, Bruce, 78, 191 n.160 Adams, Robert, 194 n.6 Addis, Adeno, 196 n.18 Adler, Maw, 154 Administrative Procedures Act (1946), 116 Adoption, 76, 190 Akerlof, George, 191 n.155 Aleinikoff, Alexander, 193 n.178, 206 n.98 Alexander, Jeffrey, 186 n.92, 194 n.6 Alexander, Larry, 193 n.176 Alger, Jonathan, 211 n.191 Allport, Gordon, 108, 198 n.15 Alon, Sigal, 200 n.47 Alstein, Howard, 190 n.143 Ambady, Nalini, 184 n.67 Americans with Disabilities Act (1990), 94 Amicus Curiae briefs, 142, 145, 208 n.127 Anderson, Elizabeth S., 181 n.1, 193 n.182 Anderson, Michelle Wilde, 213 n.4 Anderson, Terry H., 200–201 n.5 Appiah, Kwame Anthony, 170 n.12, 172 n.29, 185 n.90 Argentina, 39

Arias, Elisabeth, 188 n.116 Aristotle, 169 n.3 Armor, David, 171 n.16 Army, 201 n.15 Aronson, Joshua, 204 n.59 Arrow, Kenneth, 78, 191 n.158 Ashmore, Richard D., 184 n.67 Asian Americans, as beneficiaries of affirmative action, 31, 32, 205 n.68 demographic growth, 31, 39, 179 n.42 economic and educational success, 30, 145 as indirect victims of affirmative action, 145–146, 208 n.135 internal diversity, 147, 209 n.140 out-group marriage rate, 178 n.12 overrepresentation in selective universities and academic performance, 113, 155, 208 n.130 as seen by Kallen, 154–155 as a single administrative category, 169 n.6, 210 n.162 test scores, 145, 146, 149 as victims of discrimination, 45, 186 n.92

244

General Index

Athletes, 208 n.137 Au, Jeffrey, 208 n.135 Australia, 39, 179 n.41 Ayres, Ian, 189, 200 n.49, 205, 213 n.10 Back, Les, 172 n.29 Bagenstos, Samuel, 195 n.14 Bakke, Allan, 32, 33 Baldus, David, 189 n.137 Balkin, Jack, 183 n.45, 213 n.10 Banks, Richard, 190 n.144, 192 n.168 Barber, Elinor, 200 n.49 Barnes, Katherine, 192 n.168 Baron, Stephen, 187 n.101 Barry, Brian, 177 n.49, 209 n.147 Bartholet, Elisabeth, 190 n.144, 202 n.30 Bauer, Otto, 154 Baum, Lawrence, 206 n.81 Bayton, James, 191 n.167 Bean, Frank D., 179 n.41 Beaton, Anne M., 198 n.24 Beck, Lewis, 214 n.24 Becker, Gary, 77, 191 Beitz, Charles, 136, 206 n.84 Bellah, Robert, 172 n.28 Belz, Herman, 200 n.2 Bendick, Marc, Jr., 189 n.25 Benn Michaels, Walter, 210 n.160 Bennett, Pamela R., 187 n.110 Bentley, Arthur, 178 n.18 Berger, Peter, 100, 172 n.23, 186 n.95, 194 n.9, 196 n.26 Berlin, Ira, 185 n.92 Bernal, Martin, 153, 210 Bertrand, Marianne, 189 n.125 Bickel, Alexander, 183 n.43 Billig, Michael, 197 Blackmun, Harry, 1, 17, 28, 32, 33, 35, 38, 45, 108, 140, 149, 176 n.40, 206 n.104 Blum, Lawrence, 186 n.96 Blumrosen, Alfred, 130, 204 n.54 Bobbitt, Philip, 194 n.6 Bobo, Lawrence, 190

Bok, Derek, 114, 115, 197 n.2, 200, 204 n.60, 211 n.178, 213 n.7 Bonestia, Christopher, 186 n.92 Borjas, George, 176 n.23 Bork, Robert, 206 n.91 Borstlemann, Thomas, 212 n.208 Boudon, Raymond, 188 n.123, 196 n.16 Bourdieu, Pierre, 179 n.38 Bourne, Randolph, 210 n.172 Bowen, William, 114, 115, 197 n.2, 200, 204 n.60, 211 n.178, 213 n.7 Boxill, Bernard, 174 Braddock, Jommils H., 189 n.126 Braman, Donald, 183 n.47 Brandeis, Louis, 178 n.4 Brennan, William, 17, 28, 32, 33, 35, 38, 41, 44, 108, 127, 149, 180 n.55, 197 n.1, 203 n.44 Brest, Paul, 53, 181 n.16, 195 n.8, 209 n.140 Brewer, Marylin, 192 n.174, 194 n.3 Breyer, Stephen, 213 British Isles, 39 Brock, Caryn J., 197 n.13 Broder, David, 212 n.211 Bronner, Gerald, 191 n.164 Brooks, Richard, 200 n.49 Brown, Rupert, 199 n.29 Brown, Susan K., 179 n.41 Brown University, 146 Bulaski, Charles, 189 n.137 Bulman-Pozen, Jessica, 213 n.10 Bundy, R.P., 197 n.4 Bunzel, John, 208 n.135, 211 n.179 Burger, Warren, 32, 175 n.18, 205 n.70 Burgi-Golub, Noëlle, 169 n.2 Bush, Jeb, 171 n.15 Busing, 171 n.16 Buss, Sarah, 214 n.20 Butler, John, 201 n.15 Bybee, Keith, 194 n.6 Cahn, Steven, 172 n.19, 174 Calabresi, Guido, 194 n.6

General Index California (State of), 142, 164, 170 n.15, 204 n.63 California (Supreme Court of), 33 California (University of), 32, 33, 155, 178 n.3 California (University of) [Berkeley], 113, 132, 145, 153, 155, 159, 170 n.15 California (University of) [Davis], 32, 33, 36, 150, 151 California (University of) [Los Angeles] (UCLA), 113, 145, 156, 199 n.42 Calvès, Gwénaële, 172, 178 n.17, 194 n.6 Canada, 179 n.41 Canady, Charles, 185 n.79 Cancian, Maria, 204 n.60 Caribbean (immigrants), 192 n.170 Carmines, Edward, 170 n.12, 171 n.18 Carneiro, Pedro, 188 n.115 Carnevale, Anthony, 204 n.60 Carter, Ian, 175 n.18 Carter, Jimmy, 176 n.37 Carter, Stephen, 188 n.122, 200 n.45, 211 n.187 Casmey, Susan, 197 n.13 Casper, Gerhard, 170 n.12 Castellino, Domini, 211 n.180 Catholics, 207 n.120 Chai, Karen, 186 n.92 Chait, Jonathan, 213 n.14 Chambers, David L., 200 n.49 Chambers, Simone, 206 n.81 Chang, Mitchell, 200 n.43 Changmin, Duan, 199 n.31 Chen, Anthony S., 201 n.10 Chevallier, Jacques, 172 Chi-hye Suk, Julie, 172 n.20 Chicago (University of), 110 Chicanos, 32, 142, 155 China, 39, 179 n.42 Chong, Dennis, 188 n.124 Cimino, Chapin, 204 n.62 Civil Rights Act (1866), 176 n.25 Civil Rights Act (1875), 172 n.32

245

Civil Rights Act (1964), 175 n.10, 203 n.51 and affirmative action, 32, 165–166 and color-blindness, 11, 47, 48, 65–66 general content, 8 and immigration law, 39 remedies in case of a violation of the, 22, 176 n.25, 203 n.45 and statistical discrimination, 47–48, 66, 80 Title II, 172 n.32 Title VI, 172–173 n.32, 178 n.3 Title VII, 102, 116, 117, 118–130, 173 n.32, 174 n.1, 176 n.25, 177, 195 n.3, 201 n.7, 202 n.21, 203 Civil Rights Act (1991), 176 n.25 Clark, Kenneth, 184 n.66 “Clark-Case memorandum”, 119 Class, 6, 7, 21, 34, 49, 163, 175 n.23, 188 n.123, 191 n.163, 202 n.32, 204 n.60, 207 n.119 Class-based affirmative action, 130–131, 132 Clayton, Dewey, 188 n.120 Clinton, Bill, 27, 118, 161, 176 n.39, Clotfelter, Charles, 171 n.16 Clydesdale, Timothy T., 200 n.49, 210 n.177 Cohen, Carl, 184 n.74 Cohen, Marshall, 169 n.11, 171 n.16, 172 n.19, 174, 175 Cohen-Tanugi, Laurent, 172 n.22 Cole, David, 189 n.136 Cole, Stephen, 200 n.49 Coleman, James S., 192 n.172 Coleman, Jules, 169 n.5 Collini, Stefan, 179 n.42 Color blindness, 121, 124, 128, 170 n.15 and affirmative action, 1, 2, 58, 81, 94, 171 n.16, 192 n.173 as being intrinsically a side effect, 87, 101–104 in City of Richmond v. Croson, 133–135, 205 n.80 and the Civil Rights Act of 1964, 11, 48, 65–66

246

General Index

Color blindness––continued conditions of realization, 103–104 and the consequentialist defense of affirmative action, 65–69 critiques of the principle of, 60 definitions of, 69, 101–102, 196 n.31 and the new substitutes for affirmative action, 131–132, 164 in Palmore v. Sidoti, 66–67 in Shaw v. Reno, 137–139 Columbia (District of), 173 n.33 Columbia (University), 143, 145 Compensation, 11, 13–30, 134, 177 n.47 Congress (see also Disparate impact), 41, 42, 120, 126, 129, 133, 205 n.74 Conley, Dalton, 188 n.113 Conley, Patricia, 208 n.137 Connecticut, 143 Consequentialism/consequentialist, 43, 62, 65–69, 83, 87, 89, 90, 163, 185 n.92 Cornell (University), 113 Correll, Joshua, 199 n.28 Corrective justice (see also Civil Rights Act (1964), Compensation, Racism), 3, 5, 11, 13–30, 42–44, 163 Crenshaw, Kimberlé, 185 n.90, 211 n.191 Crèvecoeur, J. (de), Hector St. John, 161 Crocker, Jennifer, 196 Crowder, Kyle, 189 n.127 Crowley, John, 214 n.22 Cullen, Michael J., 204 n.59 Cureton, Jeanette, 212 n.202 Curry, George, 176 n.39 Dan-Cohen, Meir, 206 n.81 Daniels, Roger, 208 n.129 Darity, William, Jr., 186 n.92, 211 n.180 Dartmouth (University), 143 Davidson, Chandler, 171 n.16 Dawson, Michael, 188 n.123 Days III, Drew, 203 n.46

Delany, Martin, 177 n.48 Delaware (University of), 157 Demuth, Stephen, 189 n.130 DeNavas-Walt, Carmen, 187 n.112, 188 n.114 Denton, Nancy, 186 n.92 Department of Labor, 174 n.1, 200 n.5 Deracialization (see also Liberalism), 7, 62, 64, 67, 69, 81–83, 87, 88, 89, 90, 95, 96, 97, 100, 102, 103, 105, 106, 108, 158, 162, 163, 166, 167, 168, 183 n.59, 184 n.71, 198 n.16, Dershowitz, Alan, 207, 208 Descombes, Vincent, 214 n.23 Dewey, John, 154 Dirks, Nicholas, 172 n.20 Disparate impact (discrimination) and affirmative action, 122–127, 142–146, 203 n.34 on Asian students, 123, 145–146, 208 n.135 on blacks and Hispanics, 119, 125, 157, 163 and the compensation paradigm, 28 as a concept only benefiting groups previously targeted for disparate treatment, 122–123 in congressional debates, 119, 121 in Connecticut v. Teal, 127–128 as defined in practice, 201 n.21, 202 in Griggs v. Duke Power Company (definition), 119–120, 195 n.3 intentional: against blacks, 119, 121–122, 202; against Jewish students, 142–145; in City of Richmond v. Croson, 134; in favor of blacks and Hispanics, 131, 134, 163–164, 207 n.119 interpreting the extension of the concept of discrimination so as to include, 128–130 reconsidering the distinction between disparate treatment and, 128–129 sanctions of, 176 n.25

General Index Diversity, 5, 7, 31–48, 90, 115, 139–151, 153, 154, 155, 156, 157–162, 163, 165, 167, 168, 180, 206 n.104, 207, 210 n.172, 212 n.203 Dobbin, Frank, 212 n.203 Dobry, Michel, 193 n.175, 197 n.10 Dominican Republic (the), 179 n.42 Dong, Selena, 208 n.131 Donohue, John, 203 Douglass, Frederick, 28, 109, 177 n.48, 198 n.20 Douglass, John Aubrey, 213 n.3 D’Souza, Dinesh, 186 n.98, 200 n.44, 211 n.181 Dudziak, Mary, 212 n.208 Dworkin, Ronald, 6, 49–70, 71, 83, 87, 94, 97, 100, 101, 163, 165, 180 n.68, 181, 182, 183, 184, 185, 194 n.6, 195 n.3, 209, 213 n.18, 214 n.21 Edelman, Lauren, 201 n.7, 212 n.203 Elster, Jon, 22, 23, 101–104, 143, 176, 194 n.4, 196, 207, 208 n.137, 212 n.210, 214 n.20 Ely, John Hart, 35–36, 37, 53–54, 178 n.16, 179, 182 Emerson, Michael O., 186 n.92 England, 39 Epstein, David, 171 n.16, 203 n.50 Epstein, Richard, 181 n.80 Equal Employment Opportunity Commission, 11, 116, 130, 174 n.1, 202 n.21 Éribon, Didier, 186 n.94 Erskine, Nancy, 197 n.13 Eskridge, William, Jr., 203 n.48 “Ethnoracial pentagon”, 39, 152, 153, 210 n.162 Etzioni, Amitai, 178 n.12 Europe, 154, 155, 161 Executive Order 10925 (1961), 174 n.2 Executive Order 11246 (1965), 174 n.2, 201 n.7

247

Fader, Jamie J., 187 n.109 Fair Housing Act (1968), 175 n.10 Fairness/unfairness, 1, 20–21, 24, 42, 43, 57, 135, 151 Fallon, Richard, 204 n.61 Farley, Reynolds, 186 n.92 Feagin, Joe, 189 n.129 Feher, Michel, 211 n.196 Feinberg, Joel, 170 n.12 Fernandez, Roberto M., 187 n.103 Fernandez-Mateo, Isabel, 187 n.103 Fessler, Carol, 202 n.29 Field, John, 187 n.101 Fifth Amendment, 173 n.33 Fifteenth Amendment, 175 n.10 Filipinos, 155 Finn, John, 209 n.143 First Amendment, 68, 82, 139, 140, 206 n.102, 208 n.139 Fiscus, Ronald, 30, 177 n.56 Fiske, Susan, 181 n.77 Fiss, Owen, 82, 171 n.16, 177 n.50, 193 n.180, 203 n.51, 209 n.157 Fix, Michael, 189 n.125 Flament, Claude, 197 n.4 Florida, 66, 121, 164, 171 n.15, 185 n.79, 204 n.63 Fogg-Davis, Hawley, 190 n.144 Foner, Filip S., 177 n.48, 198 n.20 Ford, Christopher, 171 n.16, 172 n.20 Ford, Richard Thompson, 210 n.160 Ford, Thomas E., 199 n.31 Fordham, Signithia, 211 n.180 Foreign policy, 212 n.208 Formal justice (principle of), 50–51 Foster, Sydney, 213 n.10 Fournier, Marcel, 210 n.161 “four-fifths rule”, 202 n.21 Fourteenth Amendment (Equal Protection Clause), 8–9, 32, 33, 36, 41, 50, 51, 52, 53, 60, 61, 67, 95, 97, 131, 132, 135, 137, 138, 147, 158, 173 n.33, 183 n.45, 190 n.139, 202 n.32 François, Bastien, 186 n.93

248

General Index

Franken Paul, Ellen, 211 n.182 Frankenberg, Erica, 213 n.4 Frankfurter, Felix, 140, 151, 179 n.48, 193 n.177, 206 n.101 Frazier, E. Franklin, 154 Fredrickson, George, 175 n.14, 184 n.63 Freedom academic, 45, 139–140, 206 of association, 72 of the employer, 126 of speech, 140 Fryer, Roland, 201 n.13, 204 n.59 Frymer, Paul, 170 n.11, 204 n.55 Fuchs, Lawrence, 212 Fullinwider, Robert, 172 n.19, 176 n.37 Furet, François, 196 n.15 Galanter, Marc, 172 n.20 Galston, William, 182 n.39 Garcia, Luis, 197 n.13 Gary, Melvin L., 184 n.67 Garza (de la), Rodolfo, 171 n.16, 209 n.140 Gay, Claudine, 188 n.123 Georgetown University, 157 Georgia, 75, 121 Germany, 154, 161 Gerrymandering, 136, 137, 138 Gerstle, Gary, 202 n.28 Ginsburg, Ruth Bader, 148, 165, 213 Gitlin, Todd, 207 n.104 Glasgow, Joshua, 186 n.96 Glass ceiling, 202 n.30 Glazer, Nathan, 170 n.13, 171 n.16, 177 n.54, 180 n.74, 185 n.92, 194 n.6, 210 n.172 Goffman, Erving, 64, 97, 184 n.65, 194 n.7, 195 n.10 Goldberg, Carole, 169 n.10 Goldenberg, David M., 175 n.14 Goldman, Alan, 172 n.19, 174, 175 n.15 Goodin, Robert, 214 n.25 Gordon, Milton, 186 n.92 Gorman, Siobhan, 205 Gottfredson, Linda, 157, 211 n.183 Graham, Hugh Davis, 171 n.16, 178, n.1 Gramercy (Louisiana), 125

Gray-Little, Bernadette, 196 n.19 Greenhouse, Linda, 205 n.71 Grofman, Bernard, 171 n.16 Gross, Samuel, 192 n.168 Group inequalities, 29–30, 72, 73–76, 81, 82, 164 Guillaumin, Colette, 196 n.27 Guinier, Lani, 118, 182 n.37, 201 n.11, 213 n.2 Gullickson, Aaron, 178 n.12 Gunther, Gerald, 174 n.40 Gurin, Patricia, 180 n.73 Gutman, Herbert, 185 n.92 Gutmann, Amy, 170, n.12, 176 n.38, 185 n.90, 196 n.35, 209 n.158 Habermas, Jürgen, 194 n.1 Habsburg (Empire), 154 Hacker, Andrew, 187 n.99, 208 n.131, 210 n.177 Hafdahl, Adam R., 196 n.19 Hakuta, Kenji, 200 n.43 Ham, 175 n.14 Hamilton, David L., 199 n.27 Hamilton Outtz, Janice, 191 n.167 Hamilton Krieger, Linda, 181 n.77, 195 n.3, 197 Hammond, Ray, 196 n.20 Hanft, Laura, 207, 208 Harcourt, Bernard, 192 n.168 Hardin, Curtis, 184 n.67 Hardison, Chaitra, M., 204 n.59 Hart, H. L. A., 181 n.4 Hartney, Michael, 193 n.176 Hartz, Louis, 172 n.30 Harvard (University), 112, 118, 141, 142, 143, 144, 145, 146, 148, 149, 150, 207 n.106 Hattam, Victoria, 169 n.6 Hawn, Cathy, 197 n.13 Haydon, Stephen, 189 n.127 Hayek, Friedrich August, 68, 185 n.86 Haynes, Stephen R., 175 n.14 Heckman, James, 177 n.53, 188 n.115, 189 n.135

General Index Heilman, Madeleine, 197 n.13 Hellman, Deborah, 191 n.156 Herrnstein, Richard, 199 n.26 Hewstone, Miles, 199 n.29 Higham, John, 210 n.172 Hill, Herbert, 186 n.92 Hill, Renée A., 176 n.26 Hirschman, Albert, 65, 110, 184 n.72, 193 n.1, 198 n.23 Hispanics (see also Disparate impact, Universities) as beneficiaries of affirmative action, 2, 31, 113, 146, 147, 149, 151, 156, 159, 163, 200 n.42, 205 n.68, 208 n.137 demographic growth, 31, 39, 179 n.42 effects of eliminating affirmative action on, 163 internal diversity, 147 out-group marriage rate, 178 n.12 as potential adoptees, 76 as a quasi-racial minority, 152 as seen by Kallen, 154 school and academic performance, 46, 113, 155, 156 as a single administrative category, 169 n.6 test scores, 157 Hochschild, Jennifer, 74, 188, 199 n.32, 202 n.29 Hollinger, David, 8, 68, 152–153, 169 n.6, 179, 185 n.83, 209 n.159, 210, 212 n.207 Holzer, Harry, 171 n.17 Howard, Jeff, 196 n.20 Howard, John, 197 n.8 Hughes, Charles Evans, 38, 179 n.39 Huntington, Samuel, 196 n.22, 213 n.18 Hurwitz, Jon, 190 n.141 Hutchinson, Dennis, 170 n.12 Idaho, 141 Immigration/immigrants, 20, 39, 43, 154, 155, 161, 176 n.23, 179, 185 n.92, 186 n.92, 192 n.170 Immutability, 59, 158

249

India, 172 n.20, 179 n.42 Interracial marriages, 77, 178 n.12, 186 n.92, 190 n.150 Issacharoff, 206 n.98 Italian Americans, 20, 29 Italy, 39 Jackson (Mississippi), 52, 53 Jackson, Jesse, 191 n.167 Jaffrelot, Christophe, 172 n.20 James, William, 154 Jarvis Thompson, Judith, 175 n.18 Jencks, Christopher, 177 n.55, 192 n.169, 204 n.59, 209 n.144, 213 n.5 Jervis, Robert, 187 n.107 Jews, 20, 23, 29, 30, 45, 117, 142–145, 207 n.120 John, Oliver P., 194 n.3, 197 n.11, 199 n.3 Johnson, Lyndon, 204 n.53 Jolls, Christine, 195 n.3 Joly, Stéphane, 198 n.24 Jones, James, 200 n.43 Judd, Charles M., 199 n.28 Juridicialization, 4, 162, 168 Kahlenberg, Richard, 199 n.40, 204, 208 n.137, 210 n.177, 211 n.179 Kallen, Horace, 153–155, 159, 210 Kang, Jerry, 208 Kant, Immanuel, 167, 214 n.24 Karabel, Jerome, 199 n.39, 207 n.109, 208 n.134 Karst, Kenneth, 177 n.47 Kasinitz, Philip, 192 n.170 Kastoryano, Riva, 210 n.161 Katz, Michael B., 187 n.109 Katz, Phyllis, 192 n.174 Katznelson, Ira, 175 n.22 Kelly, Erin, 212 n.203 Kennedy, Anthony, 138, 213 n.9 Kennedy, Duncan, 211 n.191 Kennedy, Randall, 189 n.136, 190 n.144, 191 Kidder, William C., 200 n.49 Kim, Dukhong, 188 n.124

250

General Index

Kinder, Donald, 171 n.18, 190 n.147, 198 n.16 King, Desmond, 194 n.2, 210 n.163, 210 n.174 Kirschenman, Joleen, 192 n.169 Kitano, Harry, 208 n.129 Klarman, Michael, 173 n.33 Klinkner, Philip, 212 n.208 Klitgaard, Robert, 199 Kluger, Richard, 183 n.45 Knowles, John, 192 n.168 Kommers, Donald, 209 n.143 Koppelman, Andrew, 97, 195 Kossoudji, Sherrie, 76, 190 n.142 Kotlowski, Dean, 201 n.8 Kousser, Morgan, 171 n.16 Kronman, Anthony, 211 Kryder, Daniel, 212 n.208 Krysan, Maria, 171 n.18, 198 n.16 Kuhn, Thomas, 203 n.51 Kull, Andrew, 170 n.12, 171 n.16 Kuran, Timur, 211 n.184 Kurland, Philip, 170 n.12 Kurzweil, Martin A., 200 n.43 Kymlicka, Will, 46, 176 n.38, 180 n.72, 193 n.176 LA Belle, Thomas J., 212 n.199 Lacorne, Denis, 185 n.84, 199 n.36, 207, 208 n.132, 212 Ladd, Helen, 189 n.128 Lamont, Michèle, 210 n.161 Landry, Bart, 204 n.57 Lang, Kevin, 189 n.127 Larmore, Charles, 55, 182 n.26, 213 Lawrence III, Charles, 195 n.14, 211 n.191 Layton, Azza Salama, 212 n.208 Lazarus, Edward, 189 n.138 Leca, Jean, 185 n.85 Lee, Cheryl Hill, 187 n.112, 188 n.114 Lee, Chungmei, 213 n.4 Lee, Jennifer, 192 n.170 Lehman, Jeffrey, 180 n.73 Lemann, Nicholas, 171 n.16

Lempert, Richard O., 200 n.49 Lever, Annabelle, 192 n.168 Levine, Arthur, 212 n.202 Levinson, Sanford, 180 n.72 Lévi-Strauss, Claude, 186 n.94 Levitt, Steven, 204 n.59 Levitte, Neil, 200 n.50 Lewis, Earl, 180 n.73 Liberalism and the anthropological foundation of the equality principle, 54–55 and personal autonomy, 46 individualist dimension of, 5, 6, 7, 81–82, 87, 193 n.176 tension with affirmative action’s goal of deracialization, 97–101, 165 in United Steelworkers v. Weber, 126, 203 n.47 Lieberman, Robert, 172 n.20, 202 n.26 Lin, Nan, 187 n.101 Lind, Michael, 208 n.126 Lipset, Seymour Martin, 200 n.50 List, John A., 189 n.134 Lochak, Danièle, 173 n.35 Lode, Eric, 193 n.185 Louisiana, 121, 125, 170 n.15, 204 n.63 Loury, Glenn, 72, 79, 177 n.54, 185 n.79, 187 n.100, 191 n.161, 198 n.22, 201 n.13, 213 n.6 Lowery, Brian, 184 n.67 Luban, David, 214 n.25 Luckmann, Thomas, 100, 172 n.23, 186 n.95, 194 n.6, 196 n.26 Lyons, Tom, 177 n.53 Machiavelli, Niccolo, 213 n.17 Madsen, Richard, 172 n.28 Maguire, Timothy, 157 Major, Brenda, 196 Malamud, Deborah, 204 n.60 Malaysia, 39 Mallon, Ron, 186 n.96, Mansfield, Harvey, Jr., 194 n.6 Mara, Sidney, 189 n.127 Mara-Drita, Iona, 212 n.203

General Index Margo, Robert, 202 n.33 Marshall, Terence, 172 n.26 Marshall, Thurgood, 17, 18, 28, 32, 33, 35, 38, 44, 108, 149, 174 n.40, 175 n.12, 185 n.92 Martin, Joanne, 107, 188 n.119, 197 n.12, 199 n.31 Massachusetts, 142 Massachusetts Institute of Technology (MIT), 113, 145 Massey, Douglas, 186 n.92 Masterov, Dimitriy, 188 n.115 Matsuda, Mari, 159, 211 n.192 McClain, Charles, 186 n.92, 208 n.136 McCleskey, Warren, 75 McConnell, Eileen Diaz, 189 n.128 McGuire, Kevin T., 209 n.155 McPartland, James, 189 n.126 Meltzer, Bernard, 203 n.48 Merit/meritocratic principle, 7, 11, 25, 56–57, 60, 88, 89, 90, 94, 99, 105, 107, 113, 123, 128, 142, 145, 146, 151, 157, 163, 165, 184 n.71, 187 n.99, 198 n.16, 207 Merton, Robert, 191 n.162 Mexico, 179 n.42 Michigan (State of), 171 n.15, 204 n.63 Michigan (University of), 164, 165 Mill, John Stuart, 40, 179 n.46 Miller, David, 170, n.12, 176 n.38 Miller, Norman, 192 n.174, 194 n.3 Min, Pyong Gap, 208 n.129 Mishkin, Paul, 194 n.6 Mississippi, 52, 170 n.15, 204 n.63 Mitchell, Gregory, 195 n.14 Montejano, David, 213 n.2 Moran, Rachel, 213 n.1 Morning, Ann, 171 n.16 Morone, Joseph, 202 n.29 Morris, Christopher, 176 n.35 Moskos, Charles, 201 n.15 Moss, Philip, 192 n.169 Mouw, Ted, 187 n.101 Moynihan, Daniel Patrick, 204 n.53 Mullainathan, Sendhil, 189 n.125

251

Multiculturalism, 209 n.158 and affirmative action, 207 n.104 as analyzed by Hollinger, 8, 152–153 as conceived by Kallen, 153–155 as a description of contemporary American society, 162 in discourses on US national identity, 161 genealogy of, 151–162, 163, 168 in Regents of the University of California v. Bakke, 7, 157–158 Murray, Charles, 199 n.26 Myrdal, Gunnar, 72–73, 154, 187 Nagel, Thomas, 169 n.11, 171 n.16, 172 n.19, 174, 175 Nascoste, Rupert, 192 n.174, 197 n.13 National Association of Black Social Workers, 190 n.143 Native Americans/American Indians, 2, 29, 31, 32, 39, 76, 152, 154, 155, 169 n.6, 205 n.68 Neckerman, Kathryn, 192 n.169 Nelson, Bruce, 186 n.92 Nesiba, Reynold, 189 n.128 Neumark, David, 171 n.17 New Deal, 121 New Hampshire (University of), 140 New York (City of), 74 New York (State of), 140, 142 New York (University), 143 N’gai, Mae M., 179 n.40 Nickel, James, 16, 174, 175 n.7 Nieli, Russell, 175 n.21, 194 n.6, 198 n.22 Niemi, Richard, 206 n.89 Nobles, Melissa, 171 n.16 North Carolina, 118, 121, 135, 136, 137, 138 Nozick, Robert, 23–26, 28, 54, 55, 175 n.6, 176 n.28, 182 Oakeshott Michael, 68, 185 n.87, 196 n.24 O’Brien, Ruth, 195 n.3

252

General Index

O’Connor, Sandra, 42, 67, 68, 133, 134, 135, 136, 137, 138, 197 n.1, 205, 206, 213 Office of Federal Contract Compliance Programs, 11, 117, 127, 130, 174 n.1, 202 n.21 Ogbu, John, 211 n.180 O’Halloran, Sharyn, 171 n.16 Ohio State (University), 113 Oklahoma, 121 Oliver, Melvin, 188 n.113 Olson, Mancur, 192 n.171, 193 n.181 O’Neill, Dave, 177 n.53 O’Neill, June, 177 n.53 Oren, Dan, 207 Orfield, Gary, 213 n.4 Oshige [or Oshige McGowan], Miranda, 209 n.140 Ostrom, Thomas, 197 n.5 Otten, Sabine, 197 n.6 Outreach, 3, 170 n.14 Pager, Devah, 188 n.124, 189 n.131 Park, Bernadette, 199 n.28 Park, Robert, 154, 210 n.173 Parker, Frank R., 206 n.98 Parsons, Talcott, 169 n.9, 184 n.66 Pascal, Anthony, 191 n.156 Pascal, Blaise, 103 Patterson, James, 183 n.45 Patterson, Orlando, 185 n.92 Pattillo-McCoy, Mary, 204 n.57 Payne, B. Keith, 199 n.28 Pearl Harbor, 183 n.53 Pedriana, Nicholas, 174, 201 n.5 Peffley, Mark, 190 n.141 Percentage plans, 163–164, 165, 213 n.2 Perelman, Chaim, 50, 181 Perlmann, Joel, 171 n.16 Persico, Nicola, 192 n.168 Petersen, Trond, 187 n.101 Peterson, Paul, 192 n.169, 209 n.156 Petitat, André, 184 n.6 Pettigrew, Thomas, 107, 188 n.119, 197 n.12, 198 n.15, 199

Phelps, Edmund, 78, 191 n.157 Philadelphia Plan, 117, 200 n.5, 201 n.8 Philippines (the), 179 n.42 Phillips, Anne, 177 n.51, 193 n.183, 209 n.158 Phillips, Julia A., 188 n.117 Phillips, Meredith, 204 n.59, 209 n.144, 213 n.5 Piazza, Thomas, 170 n.18, 183 n.46, 196 n.20, 198 n.16, 201 n.12 Pierre, Line, 198 n.24 Pildes, Richard, 171 n.16, 206 n.89 Pole, J. R., 169 n.7 Posner, Eric A., 175 n.11 Posner, Richard, 158, 193 n.184, 207 n.104, 211 n.189 Post, Robert, 179 n.42, 213 n.2 Powell, Lewis, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 44, 45, 46, 47, 48, 139, 140, 141, 142, 144, 146, 147, 148, 149, 150, 151, 152, 157, 158, 164, 168, 169, 178 n.7, 180, 181 n.79, 190 n.140, 195 n.6, 197 n.1, 207 n.106 Prager, Jeffrey, 193 n.179 Pratkanis, Anthony, 198 n.24 Primus, Richard, 173 n.33 Princeton (University), 111, 146 Proctor, Bernadette D., 187 n.112, 188 n.114 Proportionality/Proportional representation, 27–30, 44, 46, 47, 83, 84, 98, 118, 129, 177 n.44, 196 n.21, 205 n.72 Proposition 209, 170 n.15 Proxy (see also Segregation), 47, 48, 66, 71, 78, 108, 131, 132, 158, 164, 180 n.63, 192 n.170 Public opinion, 2, 3, 76–77, 118, 190 n.150, 198 n.16, 209 n.155 Public Works Employment Act (1977), 133, 205 n.72 Publicity principle, 166–167 Putnam, Robert, 187 n.101

General Index Quotas, 33, 39, 45, 117, 118, 125, 126, 127, 143, 144, 149, 150, 178 n.8, 201, 203 n.45, 205 n.72 Queens, 187 n.99 Racial identification as a factor of disadvantage, 6, 7, 75, 82, 94, 97 as intrinsic to affirmative action, 2 as opposed to the biological conception of race, 70–71 in relation to affirmative action’s ultimate goal, 63, 64, 65, 69, 100, 104, 163, 167 Racial profiling, 79, 191–192 n.168 Racism (see also Racial identification) as activated by negative side effects of affirmative action, 198 n.16 and the contemporary use of the notion of race, 70–71 definition, 186 n.94 differential impact on minorities, 185 n.92 dimensions, 76 as a foundation for group-based corrective justice, 18 as an ideological system, 70, 76, 77, 152 as an indirect cause of statistical discrimination, 191 n.154 long-term eradication of, 1, 184 n.63 repression of, 201 n.15 unconscious, 195 n.14 as the underlying cause of cultural differences between racial groups, 30 in U.S. public opinion, 76–77, 190 n.150 Rae, Douglas, 202 n.29 Rawls, John, 55, 56, 170 n.12, 181, 182, 209 n.157, 213 Raynaud, Philippe, 162, 167, 168, 212, 214 n.25 Reagan, Ronald, 162 Rectification (principle of), 23–26, 28

253

Redistricting, 135–139, 171 n.16 Rehnquist, William, 32, 213 n.9 Reskin, Barbara, 190 n.145 Responsibility, 19–20, 59 Restoration, 21–30 Retribution, 22, 23 Ricciardi, Mario, 175 n.18 Richeson, Jennifer, 184 n.67 Richmond, 14, 133 Ridley, Stanley, 191 n.167 Riggs-Fuller, Sally, 212 n.203 Right(s), 10, 41–42, 51, 52, 55, 56, 58, 60, 61, 62, 70, 121, 140, 149, 153, 165, 168, 175 n.10, 182 n.22 Risse, Matthias, 192 n.168 Roback, Jennifer, 68, 185 n.82 Robinson, Greg, 183 n.53 Robinson, Randall, 175 n.13 Robinson, Russell, 170 n.11 Roemer, John, 181 n.1, 194 n.6 Rogers, Reuel R., 192 n.170 Rogin, Michael, 179 n.42, 213 n.2 Role model, 98, 99, 196 Romano, Renee, 190 n.149 Roosevelt, Franklin Delano, 183 n.53 Rose, Stephen, 204 n.60 Rosen, Jeffrey, 209 Rosenberg, Jonathan, 212 n.208 Rosenfeld, Michel, 5, 172 Ross, Stephen L., 189 Rothbart, Myron, 194 n.3, 197, 199 n.3 Rothman, Stanley, 200 n.50 Royster, Deirdre, 187 n.103 Rubenfeld, Jed, 183 n.44, 185 n.90, 206 n.93 Rudenstine, Neil, 180 n.52 Rudman, Laurie A., 184 n.67 Rule (see also “four-fiths rule”), 1, 2, 4, 8, 21, 25, 27, 38, 50, 51, 52, 58, 60, 67, 68, 69, 85, 91, 93, 94, 95, 108, 123, 127, 137, 165, 166, 168, 170 n.15, 181 n.12 Rumbaut, Rubén G., 179 n.41 Ruvolo, Catherine, 199 n.27

254

General Index

Sabbagh, Daniel, 171 n.16 Sackett, Paul R., 204 n.59 Sagar, Andrew, 199 n.28 Salyer, Lucy, 208 n.136 Sandalow, Terrance, 183 n.48, 199 n.40 Sandel, Michael, 101, 170 n.12, 172 n.31, 176 n.34, 184 n.71, 196 Sander, Richard, 200 n.49 Sanders, Lynn, 171 n.18, 190 n.147, 198 n.16 Saporta, Ishak, 187 n.101 Scalia, Antonin, 14, 20, 109, 134, 174, 175 n.21, 198 n.19, 205 n.74, 213 n.9 Scanlon, Thomas, 169 n.11, 171 n.16, 172 n.19, 174, 175 Schauer, Frederick, 192 n.168 Scheffler, Samuel, 181 n.1 Schelling, Thomas, 177, 180 n.66, 187 n.102 Schmader, Toni, 196 n.20 Schnapper, Eric, 183 n.43, 202 n.24 Schofield, Janet Ward, 199 n.28 Schrag, Peter, 205 n.67 Schuck, Peter, 180 n.67, 213 n.10 Schuller, Tom, 187 n.101 Schulz, George, 201 n.8 Schuman, Howard, 190 Schweisguth, Etienne, 64, 184 n.68 Searle, John, 183 n.61 Sears, David, 190 n.150 Sedikides, Constantine, 197 n.5 Segregation, 22, 34, 52, 61, 127, 137, 183 n.45, 186 n.92 residential, 72, school: and affirmative action, 59, 60, 61, 62; in Bolling v. Sharpe, 173 n.33; as required by some proxies for race-based affirmative action, 164; as supporting the diversity argument, 211 n.188; as the underlying cause of the disparate impact experienced by blacks, 119, 121; in U.S. public opinion, 77;

Seidel, Marc David, 187 n.101 Selmi, Michael, 182 n.37, 201 n.18 Sen, Amartya, 181 Set-asides (of government contracts), 132, 133, 170 n.15, 171 n.15, 205 Sethi, Rajiv, 186 n.92 Shapiro, Ian, 194 n.6 Shapiro, Martin, 172 n.22 Shapiro, Thomas M., 188 n.113 Shelby, Tommie, 186 n.97 Sher, George, 174, 176 n.26, 193 n.184 Sherman, Susan, 199 n.27 Sherwin, Emily, 194 n.6 Shoben, Elaine, 203 n.36 Shulman, Stephen, 186 n.92 Sidanius, Jim, 190 n.150 Siegel, Reva, 183 n.50 Simmons, William, 211 n.198 Simon, Rita J., 190 n.143 Sinclair, Stacey, 184 n.67 Skerry, Peter, 171 n.16 Skidmore, Felicity, 189 n.128 Skrentny, John David, 11, 170 n.11, 171 n.16, 172 n.20, 174, 194 n.2, 195 n.5, 200, 201, 212 n.208 Slavery, 22, 63, 121, 175 n.14 Slippery-slope (argument), 75, 84, 95, 193 n.184 Smelser, Neil, 186 n.92 Smith, Rogers M., 169 n.9, 182 n.26, 194 n.6, 210 n.163, 212 n.208 Smith, Tony, 212 n.209 Sniderman Paul, 170 n.12, 171 n.18, 183 n.46, 196 n.20, 198 n.16, 201 n.12 Social Security Act (1935), 121 Sollors, Werner, 190 n.149 Solomos, John, 172 n.29 Somanathan, Rohini, 186 n.92 Song, Sarah, 209 n.158 Souter, David, 165, 206 n.85, 213 South Africa, 172 n.20 South, Scott, 189 n.127 South Korea, 179 n.42 Sowell, Thomas, 29, 172 n.20, 177 n.52, 199 n.41

General Index Spain, 39 Spencer, Steven, 196 n.20 Spiegelman, Peter, 203 n.36 Squires, Gregory, 189 n.127 Srull, Thomas, 194 n.3, 197 n.11 Stanford (University), 145, 146, 160, 209 n.140 Stangor, Charles, 199 n.31 State action, 53, 190 n.139 Stathatos, Peter, 197 n.13 Statistical discrimination, 6, 47–48, 66, 78, 79, 80, 95, 108, 191 n.156 Steeh, Charlotte, 171 n.18, 190, 198 n.16 Steele, Claude, 204 n.59 Steele, Shelby, 198 n.21, 200 n.45 Steffensmeier, Darrell, 189 n.130 Stein, Michael Ashkley, 195 n.3 Stereotypes, 41, 42, 64, 79, 81, 83, 88, 98, 107, 112, 114, 136, 137, 154, 158, 182 n.42, 183 n.42, 198 n.16, 204 n.59 Stern, Mark J., 187 n.109 Stevens, John Paul, 32, 36, 41, 126, 174 n.40, 178 n.23, 180 n.53, 197 n.1, 198 n.14, 213 n.8 Stewart, Potter, 32 Stigma/Stigmatization, 80, 82 as a legacy of slavery, 22 as a negative side effect of affirmative action, 105–115, 128, 142, 198 n.16, 201 n.15 as a negative side effect of the diversity argument, 158 in Palmer v. Thompson, 53 in Palmore v. Sidoti, 66 in Regents of the University of California v. Bakke, 45 in Strauder w. West Virginia, 61 as providing a definite meaning to the Equal Protection Clause, 60, 61, 96 Stimson, James A., 209 n.155 Stone, Geoffrey, 206 n.102 Stone, Harlan, 35

255

Stryker, Robin, 174, 201 n.5 Strauss, David, 170 n.12, 185 n.76 Strict scrutiny critiques, 174 n.40 definition, 9–10, 205 n.80 functions, 10, 96 in Adarand Constructors, Inc. v. Pena, 180 n.63, 205 n.74 in City of Richmond v. Croson, 133 in Ely’s theory of judicial review, 36 in Metro Broadcasting v. Federal Communications Commission, 41 in Regents of the University of California v. Bakke, 33 Struyk, Raymond, 189 n.125 Stuart, Guy, 189 n.128 Sturm, Susan, 182 n.37, 213 n.16 Substitution strategies, 143, 207 n.119 Sullivan, Kathleen M., 180 n.64 Sullivan, William M., 172 n.28 Summers, Robert S., 169 n.4 Summers, Russell, 197 n.13 Sunstein, Cass, 175 n.5, 194 n.5, 206 n.92 Swidler, Ann, 172 n.28 Sylvester, Edward, 117 Synnott, Marcia Graham, 207 n.111, 208 n.125 Taguieff, Pierre-André, 76, 190 n.146 Tajfel, Henri, 106, 197 Takaki, Ronald, 209 n.140 Taylor, Bron Raymond, 190 n.151 Taylor, Dalmas, 192 n.174 Teles, Steven, 172 n.20 tenBroek, Jacobus, 173 n.34 Tests, 144 admission, 56, 57, 58, 60, 112, 113, 115, 131, 132, 139, 142, 145, 146, 149, 157, 163, 204 n.60, 207 n.108 hiring, 119, 120, 121, 122, 123, 127, 128, 157, 202 IQ, 204 n.59 literacy, 122

256

General Index

Tetlock, Philip E., 195 n.14 Texas (State of), 163, 170 n.15, 204–205 n.63, 212 n.1 Texas (University of), 113, 132 Texas (University of) [Austin], 205 n.63 Texas (University of) [Texas A&M], 205 n.63 Thermes, Julie, 211 n.197 Thernstrom, Abigail, 180 n.75, 194 n.6, 199 n.42, 211 n.184, 212 n.1, 213 n.5 Thernstrom, Stefan, 180 n.75, 194 n.6, 199 n.42, 211 n.184, 212 n.1, 213 n.5 Thirteenth Amendment, 8, 175 n.14 Thomas, Clarence, 213 n.9 Thompson, Dennis, 213 n.19 Thompson, Janna, 176 n.26 Thurow, Lester, 191 n.156 Tichenor, Daniel, 179 n.40 Tien, Chang-Lin, 210 n.176 Tienda, Marta, 200 n.47 Tilly, Chris, 192 n.169 Tipton, Steven M., 172 n.28 Tobin, Eugene M., 200 n.43 Tocqueville, Alexis de, 2, 4, 72, 99, 169 n.8, 172 n.21, 178 n.20, 187 n.104, 194 n.8, 195 n.14, 195 n.15, 196 Todd, Petra, 177 n.53, 192 n.168 Torpey, John, 174 Torres, Gerald, 213 n.2 Tougas, Francine, 198 n.24 Tribe, Laurence, 177 n.47 Tropp, Linda, 198 n.15 Truman, David, 178 n.18 Truman, Harry, 117 Tsuang, Grace, 208 n.135 Turner, Margery Austin, 189 n.125, 189 Turner, Marlene, 198 n.24 Tushnet, Mark, 206 n.92 Tussman, Joseph, 173 n.34 Tyson, Karolyn, 211 n.180

Ueda, Reed, 178, n.1 Uniform Guidelines on Employee Selection Procedures (1978), 201–202 n.21 Unions, 7, 90, 125, 185 n.92 United Kingdom, 172 n.20 Universalization constraint, 87, 93–97 Universities (see also “California”, Tests, and Regents of the University of California v. Bakke in the index of cases), 170 n.11, 211 n.188, 213 n.3 consequences of the elimination of affirmative action on the number of black and Hispanic students in public, 132, 163, 164, 197 n.2, 212–213 n.1 development of multiculturalist programs in, 153, 159–161, 207 n.104 dissimulation by, 156–157, 199 n.34 indirect discrimination against Asians by selective, 145–146 indirect yet intentional discrimination against Jews by Ivy League, 142–145 elimination of affirmative action programs in state, 163, 170–171 n.15, 204–204 n.63 functional substitutes for affirmative action in, 132, 163–164 outreach activities, 170 n.14 performance gap between racial groups in, 46, 112–113, 114, 115, 155, 156, 157, 194 n.41, 200 n.49, 210 n.177 use of test scores by, 207 n.108 Utilitarism/utilitarian, 17, 42, 48, 55, 56, 60, 67, 68, 69, 98, 100, 101, 168, 182 n.36, 184 n.71 Van der Burg, Wibren, 193 n.185, 206 n.89 Vars, Fredrick, 189 n.133, 205 n.73 Vermeule, Adrian, 175 n.11, 206 n.92 Vietnam, 179 n.42

General Index Virginia, 133, 147, 148 Virginia Military Institute (VMI), 147, 148 Volokh, Eugene, 193 n.185, 199–200 n.42, 208 n.139 Voting Rights Act (1965), 175 n.10 Wacquant, Loïc, 188 n.118 Waldron Jeremy, 176 n.28, 194 n.2 Waldvogel, Joel, 189 n.13 Walzer, Michael, 176 n.38, 181 n.1 Wang, Lu-in, 198 n.16 War Civil, 121 First World, 154, 161 Second World, 161 Ward, Christopher, 212 n.199 Warren, Earl, 53, 178 n.16 Warren, Mary Ann, 174 Washington (City of), 79 Washington (State of), 171 n.15, 204 n.63 Washington (University of), 132 Wasserstrom, Richard, 177 n.57 Waters, Mary, 171 n.16, 192 n.170, 195 Watt, James, 162 Weber, Brian, 125 Wentura, Dirk, 197 n.6 West, Cornel, 176 n.39 Westen, Peter, 181 n.5 White, Byron, 17, 28, 32, 33, 35, 38, 44, 108, 138, 149, 206 n.97 Whittington, Keith, 183 n.44 Wieviorka, Michel, 184 n.63, 196 n.27 Wightman, Linda, 113, 199 n.35, 204 n.60

257

Williams, Bernard, 19, 175 n.18, 193 n.185 Williams, Kim M., 171 n.16 Williams, Richard, 189 n.128 Wilson, William Julius, 80, 131, 192 n.170, 204 n.57 Winerip, Michael, 191 n.168 Witt, Daria, 200 n.43 Wittenbrink, Bernd, 199 n.28 Wolfe, Connie, 196 n.20 Women, 160 as beneficiaries of affirmative action, 128, 190 n.151, 198 n.16, 201 n.15 as victims of disparate treatment discrimination, 147–148 Woodworth, George, 189 n.137 Wu, Frank H., 208 n.129 Wyer, Robert, 194 n.3, 197 n.11 Xie, Yu, 187 n.110 Yale (University), 110, 143, 145, 211, 212 n.200 Yancey, George, 186 n.92 Yates, Douglas, 202 n.29 Yelnosky, Michael, 198 n.25 Yinger, John, 189 n.12 Young, Iris Marion, 184 n.64, 193 n.186, 211 n.193 Zakariya, Nasser, 189 n.133 Zeckhauser, Richard, 192 n.168 Zolberg, Aristide, 179 n.40